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May 16, 1963

Salvatore MARTORANO, Plaintiff,
Thomas F. HUGHES, Deputy Commissioner, Second Compensation District, Defendant.

The opinion of the court was delivered by: ROSLING

ROSLING, District Judge.

Motion by defendant, the Deputy Commissioner, Second Compensation District (Commissioner), for summary judgment pursuant to Rule* 56 is denied. Such determination is bottomed solely on the premise that Crowell v. Benson, *fn1" the continuing authority of which is subject to serious question, is controlling. The court is accordingly, for the reasons hereinafter noted, of the opinion that an immediate appeal from the order of denial to be entered herein (not otherwise appealable) may materially advance the ultimate termination of the litigation and hereby makes certification, pursuant to 28 U.S.C. § 1292(b) to the Court of Appeals for its appropriate action, of the controlling question of law here involved, namely, whether the District Court in an action of the nature here brought must base its determination of the contested issue of employment upon the record returned by the Commissioner, or is required to try that issue de novo, and if so required, whether the remaining issues adjudicated by the Commissioner are similarly to be tried or are instead to be reviewed upon his record.

 The complaint seeks in effect to review and set aside a compensation order filed by the Commissioner pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act (the Act). *fn2" The order adjudges that plaintiff Salvatore Martorano was at all relevant times the employer of Richard Wipperman (the deceased) and makes award against the plaintiff to the widow and minor children of the deceased for his death resulting from accidental injury. *fn3" The employer had failed to secure the payment of compensation and was in consequence personally liable for the amounts payable. *fn4"

 Plaintiff by this action challenges the Commissioner's determination as not in accordance with law because, his averments run, the deceased was not an employee at the time he received his fatal injury.

 The Commissioner's findings of fact *fn5" touching deceased's employment are supported by substantial evidence and would, were it not for Crowell, be upheld by this court under the rule generally governing review of determinations made by administrative agencies, and specifically by the Commissioner. *fn6"

 Urging the continuing force of the special rule *fn7" enunciated in Crowell, plaintiff maintains that he is entitled to a trial de novo in this court of the issue of employment. This, if sanctioned, would, in light of the more stringent standards of acceptable proof applying in the District Court, probably be decisive in undermining the finding thus challenged. In the proceeding under review the Commissioner was not "bound by common law or statutory rules of evidence * * *" and was authorized to "make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties." *fn8" It was plaintiff's contention, implied rather than directly advanced, that deceased, an amateur practitioner of his art, had solicited the arduous and perilous task upon a voluntary arrangement entered upon with plaintiff whereby the services were to be rendered gratuitously, except for the opportunity afforded deceased for practice. The activity, however, represented to the plaintiff work essential in his salvage operation. That the relationship between Martorano and decedent was more probably the conventional one of employer and employee found by the Commissioner is substantiated not alone by circumstances which, when considered alone, appear inconclusive, and by reasonable inferences deducible therefrom, hence of no greater probative value, but by a plausible and consistent hearsay as well of which deceased was the primary source. The evidence thereof was furnished by others. *fn9" Within acceptable limitations hearsay was admissible and may well have constituted the decisional make-weight upon the compensation hearing. *fn10" Inadmissible, however, upon a common law trial of the issue, if one is had de novo, the deficiency could serve to defeat the widow's claim.

 Settle order on notice.


 Motion by defendant for rehearing granted, and upon reargument being had, original determination denying defendant's motion for summary judgment is adhered to. The commissioner has chosen not to avail himself of the permission granted by this court to apply to the Court of Appeals for an interlocutory review *fn11" of the denial of his original motion for judgment. He has, instead, here submitted a brief, copiously annotated, which demonstrates that the principle of Crowell v. Benson is still under attack, a circumstance already noted in the foregoing memorandum *fn12" and which had prompted this court to incorporate therein the certification for such interim appellate procedure. The court, nevertheless, continues unpersuaded that Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598 lies hopelessly moribund; nor does it agree that justice is more likely to be achieved were a district court judge to disregard a major declaration of constitutional law by the Supreme Court of the United States. That declaration was greeted some thirty years ago almost immediately upon its promulgation with a chorus of clucking disapproval in law review critiques and thereafter in commentation by text writers. *fn13" Additionally, certain, but not all, of the lesser appellate tribunals have as occasion presented itself distinguished by gloss and attentuated by construction *fn14" the effect of what the highest court had enunciated as a necessary limitation upon the statute if the residue were to survive the challenge of constitutional infringement. That court did not, however, at any time thereafter recall its holding in later pertinent contexts when it might well have done so had it been so minded. *fn15" It is a fair inference that such silence bespeaks a purpose to maintain a constitutional enclave, with boundaries suggested but not absolutely delineated, in which the courts are required to conduct de novo trials with common-law standards governing the admissibility of evidence, reserving for the commissioner's authority the adjudication of factual issues upon less formal proof. Excluded from such adjudicative competence would be matters wherein liminal questions touching the commissioner's jurisdiction to act at all were substantially present, the resolution of which was prerequisite to his assumption to act.

 In the instant proceedings it may be noted that the employer-employee relationship alleged by claimant without which the commissioner's fact finding function has nothing to operate upon, is not only sharply challenged by the plaintiff, but that even if established, it would fall well without any routine category of employment.

 Settle order on ...

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