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LONG v. MARINO MASSE (04/15/65)

decided: April 15, 1965.

LONG
v.
MARINO MASSE, INC. ET AL., APPELLANTS



Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1962, No. 3525, in case of Edward Long v. Marino Masse, Inc. et al.

COUNSEL

Raymond J. Porreca, for appellants.

R. Lawrence Clay, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J.

Author: Watkins

[ 205 Pa. Super. Page 346]

This is an appeal from an order of the Court of Common Pleas No. 4 of Philadelphia County, dismissing an appeal from an award made by the Workmen's Compensation Board. The Referee awarded benefits: the Board affirmed. The court below, on appeal, remanded the case to the Workmen's Compensation Board to determine whether the claimant was an employee or an independent contractor. The Board reconsidered and said, "the evidence disclosed an employer-employee relationship in which the claimant-employee was ordered by his employer to perform various labor duties in addition to the truck-driving." The Board, then found as a fact: "That at the time of the accident, claimant was employed by defendant as a truck driver and general laborer, and pursuant to this employment, while assisting another employee in filling in holes in a street and barricading the same, claimant was struck down by a passing motorist." There was a conclusion

[ 205 Pa. Super. Page 347]

    of law that the relationship of employer and employee existed and that at the time of his injury he was furthering the interest of his employer.

The claimant, Edward Long, age 43, on November 6, 1959, was employed together with one, Willie Mitchell, in filling in a hole on the shoulder of Knights Road in Philadelphia, Pennsylvania, when they were both struck by a passing motorist and seriously injured. He was employed under an oral agreement with Marino Masse, head of the defendant corporation, Marino Masse, Inc., whereby he was paid $2.25 per hour for labor and $0.75 per hour for furnishing his truck during his hours of employment. He worked full time.

On the day of the accident he drove his truck to the office, and as usual, was told where to go and what to do. In this case he was told to go to Carter Road, Byberry. He was then told by the foreman to "shovel up the mud in the street". Immediately after lunch the foreman directed the claimant and his fellow employee Mitchell to go to Knights Road and directed them to take some necessary equipment. They arrived at the place, unloaded the equipment, secured cement, set up blinking lights and began shoveling cement into one of the holes. As they were covering the holes so filled the accident occurred.

The appellants contend that the claimant was an independent contractor supplying his truck to the job. The court below on the first appeal remanded it to the Board to determine clear facts in regard to the employment.

[ 205 Pa. Super. Page 348]

The burden of proof was on the employee to establish the relationship but, we have held, "neither the compensation authorities nor the courts should be solicitous to put claimants in that position when a reasonable view of the evidence warrants a finding that the injured person was an employee." Gadd v. Barone, 167 Pa. Superior Ct. 477, 75 A.2d ...


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