Appeal from order of Court of Common Pleas of Somerset County, No. 820 CD 1963, in case of Katherine P. Brasel (Matherly) v. Quickway, Inc. et al.
David H. Trushel, with him Dickey, McCamey, Chilcote & Robinson, for appellant.
Peter P. Liebert, 3rd, with him Liebert, Harvey, Herting & Short, for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J.
[ 205 Pa. Super. Page 594]
William R. Brasel, husband of the claimant in this Workmen's Compensation case, was killed on November 20, 1959 while driving a tractor-trailer unit on the Pennsylvania Turnpike near Bedford, Pennsylvania. The trailer was owned by Jackson Trucking Company (Jackson). The tractor was owned by Brasel. The claim was filed against both Jackson and Quickway, Inc. (Quickway) and the referee entered an award against Quickway only. The Workmen's Compensation Board reversed the referee and found that the decedent was the employe of Jackson at the time of the fatal accident. The court below affirmed the board.
[ 205 Pa. Super. Page 595]
The facts as found by the board are as follows: Brasel, the decedent, was the owner of a 1959 tractor. At the time of the fatal accident, November 20, 1959, a written lease between Brasel and Jackson was in force. Section 5 of that lease was as follows: "5. It is understood that the leased equipment under this agreement is in the exclusive possession, control and use of the authorized carrier Lessee and that the Lessee assumes full responsibility in respect to the equipment it is operating, to the public, the shippers, and the Interstate Commerce Commission."
Decedent having hauled for Jackson under the aforesaid lease to New York City, entered into a lease with Quickway in Jersey City. This lease was by decedent and Jackson as lessors and Quickway as lessee, whereby lessors leased to lessee the tractor (decedent's) and the trailer (Jackson's) for a single return trip to be used by lessee, Quickway, in transporting bananas to Delaware, Ohio. The lease between decedent and Jackson to Quickway provided as follows: "3. During period of this lease the said vehicle or vehicles shall be solely and exclusively under the direction and control of the lessee who shall furnish insurance coverage as required by the Interstate Commerce Commission for public liability and cargo damage excepting such damages as caused by negligent operation of the equipment or negligence on the part of the driver or drivers as provided by the Lessor."
Going eastward from Indiana, Pennsylvania, to New York City the decedent was operating under the Interstate Commerce Commission rights of Jackson. On the return trip westward the decedent was operating under the Interstate Commerce Commission rights of Quickway. The compensation to be paid by lessee Quickway for the tractor and trailer to haul the bananas was $17.50 per ton. This was the complete payment. No deductions were made for union dues, social
[ 205 Pa. Super. Page 596]
security payments, hospitalization or W-2 payments. Decedent had to pay all of his own costs. Jackson was paying decedent's wages.
The lease between Brasel and Jackson concerned a tractor which was owned by Brasel and which was leased to Jackson on a "permanent" basis and remained in force until either party cancelled the lease by giving 30 days written notice. No such cancellation ...