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LEVIN v. WEAR-EVER ALUMINUM

June 23, 1969

Patricia Ann LEVIN, a minor, by her parents and natural guardians, Philip Levin and Harriet Levin, and Philip Levin and Harriet Levin, in their own right
v.
WEAR-EVER ALUMINUM, INC. and Edward Kennedy, Jr.



The opinion of the court was delivered by: BODY

 BODY, District Judge.

 In this personal injury action plaintiff, Patricia Ann Levin, a minor, alleged that she was walking across Chestnut Street at 34th, Philadelphia, where she was hit by defendant Edward Kennedy, Jr.'s motor vehicle. Kennedy contended that she was not in the crosswalk but was running across the street diagonally when struck in the center of it. A directed verdict for defendant, Wear-Ever Aluminum, Inc., was entered by the Court at the close of all testimony. As to Kennedy, the jury was hopelessly deadlocked and was discharged. Plaintiff filed her motion for a new trial as to Wear-Ever.

 The sole problem is whether Kennedy was operating his vehicle on the business of Wear-Ever, was its agent, and whether he was within the scope of his employment.

 The case of George v. Nemeth, 426 Pa. 551, 233 A.2d 231 (1967) carefully considers the necessary factors that are important in determining the proper conclusion. In that case the court held that the agency relationship did not exist, but that the driver was an independent contractor. That case carefully and precisely says that the question of agency is one to be decided by the court as a matter of law. It also gives us the age-old legal truism:

 
"Speaking generally, 'The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result.' Green v. Independent Oil Co., supra [414 Pa. 477] at 484, 201 A.2d [207] at 210 (1964)."
 
[ At pp. 553-554, 233 A.2d at p. 232]

 We must consider all factors indicative of a determination of relationship.

 We have the following favoring plaintiff's contentions:

 
1. Prohibition as to what Kennedy would say when demonstrating for a sale;
 
2. Pots and pans were owned by Wear-Ever;
 
3. On credit sales, if the order was approved then the goods would be delivered to the customer, and upon payment, extra commission was paid Kennedy;
 
4. Prices of products were determined by Wear-Ever;
 
5. The area in which Kennedy could sell was limited to the counties of Philadelphia, Bucks, Chester, Delaware and Montgomery in Pennsylvania; ...

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