decided: March 19, 1970.
CAETI ET AL., APPELLANTS
Appeals from order and judgment of Court of Common Pleas of Cambria County, June T., 1969, No. 356, in case of Frank Cox v. Frank Caeti et al., t/a Johnstown Builders et al.
Francis J. Leahey, Jr., with him Englehart, Creany, Englehart & Leahey, for appellants.
Blair V. Pawlowski, for appellant.
Robert S. Glass, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Concurring and Dissenting Opinion by Hoffman, J. Cercone, J., joins in this concurring and dissenting opinion. Spaulding, J., dissents.
Author: Per Curiam
[ 216 Pa. Super. Page 215]
Order and judgment affirmed.
Order and judgment affirmed.
Concurring and Dissenting Opinion by Hoffman, J.:
This action in trespass was instituted in the Court of Common Pleas of Cambria County by Frank Cox against Frank Caeti and Leonard Pizzillo, t/a Johnstown Builders, and Michael Filippelli. The facts in the case may be summarized as follows: Johnstown Builders, a home improvement company, was engaged in remodeling a home in Cambria County. Filippelli, who conducted his own business in Pittsburgh, was engaged by Johnstown Builders to install a type of stone known as "Catalina Stone" upon certain portions of the home. The installation of the stone constituted only a small portion of the remodeling work which was being conducted by Johnstown. The work
[ 216 Pa. Super. Page 216]
for which Filippelli was engaged was completed in approximately two and one-half days.
On one of those days, Filippelli, while operating a truck registered in his wife's name but which he used in his business, was involved in an accident with an automobile being operated by plaintiff. The accident occurred as Filippelli was attempting to execute a left turn off Route 219 onto the driveway of the home undergoing remodeling.
The jury found in plaintiff's favor and against both defendants in the amount of $10,000. Johnstown Builders filed motions for new trials and judgment n.o.v. on the ground that Filippelli was an independent contractor and that no master-servant relationship existed between them. These motions were denied, and judgment was entered for the plaintiff from which Johnstown Builders appealed.*fn*
It is well-established that whether Filippelli was a servant of Johnstown Builders or an independent contractor, will determine whether Johnstown Builders is responsible for Filippelli's acts of negligence caused in the course of his employment.
Ordinarily, if the facts as to an alleged masterservant relationship are in dispute, it is the function of a jury to determine the nature of the relationship. However, where the facts are not in dispute, the question of the relationship becomes one for determination by the court. Stepp v. Renn, 184 Pa. Superior Ct. 634, 135 A.2d 794 (1957); Green v. Independent Oil Co., 414 Pa. 477, 201 A.2d 207 (1964); Johnson v. Angretti, 364 Pa. 602, 73 A.2d 666 (1950), and cases cited therein.
[ 216 Pa. Super. Page 217]
In my opinion, the undisputed facts in this case establish that Filippelli was an independent contractor and that the lower court should have so ruled.
The distinction between an independent contractor relationship and a master-servant relationship has been discussed in numerous cases. Judge Watkins in Stepp v. Renn, supra, summarized the general criteria which control the distinctions.
"The courts have not formulated a hard and fast definition for the determination of whether any given relationship is one of independent contractor or that of employer-employee. They have, however, set forth indicia of such relationship to be used as guides in making such a determination, some of which are: control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one employed is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or by the job; whether work is part of regular business of the employer; and also the right of employer to terminate the employment at any time."
In seeking to establish the existence of a masterservant relationship between Johnstown Builders and Filippelli, plaintiff demonstrated the following:
(a) The "Catalina Stone" being applied by Filippelli was purchased by Johnstown Builders.
(b) Johnstown Builders would inspect the work Filippelli was performing while the work was in progress.
(c) Johnstown Builders stated in answer to a hypothetical question that if Filippelli had been discovered doing poor or unsatisfactory work, Johnstown Builders would have asked him to correct it; if Filippelli refused to comply, they would fire him, "get rid of
[ 216 Pa. Super. Page 218]
him" or "release him from his subcontract" and would not pay him.
(d) Johnstown Builders was responsible to the homeowner for the overall remodeling job.
(e) Johnstown Builders' plan was used in regard to where the stone was to be placed.
A careful study of the actual nature of Filippelli's job, indicates, however, that he had the freedom of action, responsibility and control of work ordinarily accorded only to an independent contractor.
(a) Filippelli's remuneration was determined by the number of square feet of stone to be applied and not by the hours or days of work.
(b) The number of hours or days or the specific hours or days which he was to work were not prescribed by Johnstown Builders but were left to his own discretion.
(c) Filippelli used his own equipment, tools and vehicle. Equipment, tools and a motor vehicle were not furnished by Johnstown Builders.
(d) Filippelli employed, paid and supervised his own workers who were used by him on the job.
(e) The installation of "Catalina Stone" is a specialized craft and Johnstown Builders was acquainted with only approximately eight men who performed this type of work.
(f) While Johnstown Builders instructed Filippelli as to where the stone was to be placed in accordance with the general plans, it was Filippelli's decision to determine how the stone was to be placed.
(g) The installation of the stone took approximately 2 1/2 days and Filippelli was paid when his work was completed.
(h) Filippelli was self-employed within the Commonwealth of Pennsylvania, his specialty being the installation of Catalina Stone.
[ 216 Pa. Super. Page 219]
*fn* Defendant Filippelli also filed post-trial motions and appealed on the ground that plaintiff did not prove negligence and was himself contributorily negligent. I concur in the majority decision in affirming the lower court's dismissal of these motions.