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BERG v. ROSEFSKY. (03/17/64)

March 17, 1964

BERG, APPELLANT,
v.
ROSEFSKY.



Appeal, No. 244, April T., 1963, from order of Court of Common Pleas of Cambria County, March T., 1963, No. 292, in case of Mrs. Deloris E. Berg, widow of Louis H. Berg, deceased, v. Sidney Rosefsky, trading and doing business as Mountain City Junk Company et al. Order reversed and claim petition remanded.

COUNSEL

Samuel R. DiFrancesco, Jr., with him Samuel R. DiFrancesco, Sr., and DiFrancesco and DiFrancesco, for appellant.

Clyde M. Hughes, Jr., Associate Counsel, with him Judson E. Ruch, Chief Counsel, and Walter E. Alessandroni, Attorney General, for State Workmen's Insurance Fund, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 202 Pa. Super. Page 599]

OPINION BY MONTGOMERY, J.

Appellant-claimant Deloris E. Berg is the widow of Louis H. Berg who was fatally injured on March 28, 1960, by the collapse of a brick wall during the razing of the Cambria Theater Building on Main Street in the City of Johnstown, Cambria County, Pennsylvania.

Sidney Rosefsky, trading as Mountain City Junk Company, one of the appellee-defendants, had a contract with the theater owners to raze the building, remove all debris and clear the site. In the performance of the contract he engaged Larnek Brothers, a partnership, to perform part of the work and agreed to pay it on an hourly basis of $3.50 for a truck and operator,

[ 202 Pa. Super. Page 600]

    and $7.50 for a high lift and operator plus the salvaged material it removed. The terms of the contract are in dispute. Thomas Larnek, called as a witness for the claimant, testified that his firm was engaged "To remove the debris out of the place" on an hourly basis and "We were to take out the old wood and smooth up inside, and that's all" and that they worked "off and on, when the weather permitted". Larnek Brothers were ordinarily engaged in landscaping and foundation work.

On the other hand, the regular business of Rosefsky was demolition work. He testified that he rented the truck and high lift with operators from Larnek Brothers for the purpose of razing the building and removing the debris.

The compensation authorities found as a fact "that in connection with the demolition Rosefsky hired Larnek Brothers, who were to furnish a truck and a high lift, as well as operators at an hourly rate of $3.50 for the truck and operator and $7.50 for the high lift and operator." Although this finding does not specifically say that the contract between Larnek Brothers and Rosefsky was one of rental of equipment with operators, since it also states, "Rosefsky hired Larnek Brothers", we may consider such an interpretation as a reasonable one. If such is the case, then it must be determined whether Larnek Brothers or their operators became employes of Rosefsky or whether Larnek Brothers are independent contractors. Generally the operator of a machine which has been hired with operator is the employe of the owner of the machine. However, under certain conditions where the person utilizing the services of the machine and ...


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