Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1967, No. 3442, in case of Robert Plummer v. John Wesner.
P. J. McArdle, with him J. Jerome Mansmann, for appellant.
Cosmos J. Reale, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., and Watkins and Jacobs, JJ., dissent.
[ 217 Pa. Super. Page 25]
This is an appeal from an order denying plaintiff's motion to set aside a non-suit and for a new trial. The lower court set out the facts in its opinion as follows:
"On August 22, 1966, plaintiff was injured in an automobile accident on Route 51, Forward Township, Pennsylvania, while en route to a place of employment with defendant in LaBelle, Pennsylvania, where defendant's automobile was engaged in fulfilling a painting contract . . . . [D]efendant's automobile began to spin on wet pavement, crossed over the center line and struck an oncoming automobile. . . .
"Earlier in the day plaintiff met defendant in a paint store on East Ohio Street in Pittsburgh, where defendant was purchasing paint. A discussion took place between them as a result of which defendant
[ 217 Pa. Super. Page 26]
hired plaintiff as a painter's helper at an hourly rate of $1.50 or $1.75, plus food and lodging at the job site during the work week and transportation from and to the job over weekends. Plaintiff agreed to these terms and returned to his home to talk it over with his wife, pack some clothing and drive with defendant to the job site. Plaintiff did not know how long the job was to last, but knew he would be required to be out-of-town from Monday to Friday of each week and that the work was in progress at LaBelle, Pennsylvania. There was also some discussion of an offer or advance of money by defendant for food and lodging prior to the first pay period. Plaintiff also knew that the purpose of the trip was to commence working at the job site."
Based on this statement of the facts, the court concluded that an agreement had been reached establishing an employer-employee relationship, and that plaintiff was injured while in the course of his employment. Under such circumstances, it concluded that plaintiff was precluded from bringing this action in trespass against his employer, because his remedy was under the Pennsylvania Workmen's Compensation Act.
On appeal, plaintiff contends, among other things, that the court erred in deciding as a matter of law, that plaintiff was in the course of his employment while being driven to the job site. He argues that the court should have permitted the jury to pass on this question.
The lower court, in its opinion, disagrees with this position stating: "[W]here the facts are clear, the question as to whether the injury to a workman was sustained in the course of his employment within the provisions of the Workmen's Compensation Act, . . . is one of law [citations omitted]. Although an employer is not generally liable for compensation to an employee for ...