Appeal, No. 8, March T., 1958, from judgment of Court of Common Pleas of Butler County, Dec. T., 1956, No. 95, in case of Ray Bonanni v. Weston Hauling, Inc. Judgment reversed.
John V. Wherry, with him Lee C. McCandless, for appellant.
Luther C. Braham, with him Norman D. Jaffe, and Galbreath, Braham, Gregg, Kirkpatrick & Jaffe, for appellee.
Before Jones C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
At the time of the happening of the accident which gave rise to this lawsuit, the plaintiff, Ray Bonanni, was a shovel operator employed by Miller and McKnight Coal Company in Worth Township, Butler County. In February, 1955, Miller and McKnight entered into a contract with Weston Hauling, Inc.*fn* whereby Weston was to move an Osgood Drag Line Shovel, belonging to Miller and McKnight, from its location near Portersville Station in Worth Township to a point near Cameron Garage on Route 19.
In accordance with this contract, Weston loaded the shovel onto an outfit known as a "tractor and low boy," and moved it 10 or 15 yards when the shovel began to
lose balance. A Mr. Mooney, officer of Weston, asked Ray Bonanni to mount the shovel for the purpose of "swinging the drag in a better position for transportation." Bonanni endeavored to comply with Mooney's request when suddenly the shovel careened and Bonanni jumped for his life, sustaining serious injuries in the leap. He brought an action in trespass against Weston, charging negligence in that Weston failed properly to fasten the shovel on to the "low boy," that it unskillfully moved the tractor and trailer carrying the shovel, causing it to slide, etc., etc.
The defendant filed preliminary objections, averring that when Bonanni obeyed the instructions of Mr. Mooney he became a "loaned employee" of the defendant company, was accordingly bound by the provisions of the Workmen's Compensation Act, and therefore could not maintain any action at law against this "employer." The Court of Common Pleas of Butler County sustained the preliminary objections and dismissed the complaint. The plaintiff appealed.
The dismissal of the complaint was error. There is nothing in the complaint which warrants the statement in the lower Court's opinion that Bonanni was "hired" by Weston. In granting summary judgment on pleadings a court may not go beyond the pleadings. What this Court stated in Detweiler v. Hatfield Boro. Sch. Dist., 376 Pa. 555, 558, is still law: "... The time honored principle that in passing on a demurrer a court cannot consider matters collateral to the pleading opposed but only such matters as arise out of the statement of claim or complaint itself, is still preserved under Pa. R.C.P. 1017. (See Goodrich-Amram Civil Practice section 1017(b)-11)."
If there is any basis for the Court's action in this case, it must be found in paragraphs IV and V of the complaint, for it is ...