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DIEHL v. KEYSTONE ALLOYS COMPANY (03/18/59)

March 18, 1959

DIEHL
v.
KEYSTONE ALLOYS COMPANY, APPELLANT.



Appeals, Nos. 115 and 174, April T., 1958, from judgment of Court of Common Pleas of Westmoreland County, April T., 1957, No. 609, and July T., 1957, No. 12, in case of Mrs. Shirley Diehl, widow and administratrix of the estate of Russell P. Diehl, deceased v. Keystone Alloys Company. Judgment reversed.

COUNSEL

H. Reginald Belden, with him H. A. Stewart, for appellant.

Joseph M. Loughran, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Gunther

[ 189 Pa. Super. Page 151]

OPINION BY GUNTHER, J.

These appeals involve a workmen's compensation case in which the Court of Common Pleas of Westmoreland County awarded compensation to the widow and children of the deceased, Russell P. Diehl. The case is before us on appeals by Keystone Alloys Company from the decree and amended decree entered in which the findings and conclusions of the board were reversed.

Russell P. Diehl was killed in an accident in Palmer, Alaska, on September 9, 1954, while hauling storm doors and windows to an Air Force base in Anchorage, Alaska. For some years prior to his death, he had been in the trucking and hauling business as a contract hauler. Diehl owned numerous trucks which he leased to various firms, including appellant, Keystone Alloys Company. The lease arrangement between Diehl and appellant was entered into on August 1, 1953 and provided for the payment of 17 cents per mile per vehicle actually used by appellant in hauling its products. The agreement also provided that appellant had the right to select the drivers for such vehicles and to control and direct the operation of said vehicles.

The claimant, Mrs. Shirley Diehl, testified that her husband was self-employed and had never driven for anyone during the time she was married to him. She further stated that under the contract above referred to, her husband had never been on the payroll of the appellant as an employe and that he paid his own self-employment tax under social security coverage. However, she testified and contended that her husband had been hired by appellant as a driver to drive one of his own trucks to Alaska on or about August 25, 1954, and that while so employed, he was killed.

The evidence on behalf of appellant disclosed that, as a manufacturer of storm doors and windows, it had

[ 189 Pa. Super. Page 152]

    a distributor, Jack Zappone, trading as Zappone Industries in Spokane, Washington, who distributed its products in the western part of the United States. Some time prior to September 9, 1954, Zappone Industries secured an order from the United States Government for 2700 aluminum storm windows which were manufactured and sold to Zappone Industries by appellant. The shipment was f.o.b. at the plant in Derry, Pennsylvania. Jack Zappone came to Greensburg, Pennsylvania, for the purpose of arranging for transportation of the storm windows to Alaska and it was during this visit that Diehl was introduced to Jack Zappone by the president of appellant company. Previously, Diehl had indicated a desire to handle this shipment and to drive one of the trucks himself. An agreement was entered into between Diehl and Jack Zappone under which Diehl agreed to transport the storm windows to Alaska, using two trucks, for which Diehl was to receive 25 cents per mile on an agreed round trip of 9,000 miles per truck.

The windows were loaded partially in a truck driven by Steve Selembo, who departed approximately 10 days before decedent started with the second load. Selembo had been a driver supplied by Diehl to operate his trucks for Keystone Alloys Company and was on the payroll of appellant for some time previously, although he had driven for other firms to whom Diehl had leased his trucks and had been on the payroll of such other concerns. The route was selected by Diehl. When Diehl departed with the second truck, he stopped in Wisconsin to pick up his brother-in-law, Howard Cloute, who accompanied him on the trip to Alaska. This was without the knowledge or consent of ...


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