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WALTON v. HAROLD M. KELLY (09/18/70)

decided: September 18, 1970.

WALTON, APPELLANT,
v.
HAROLD M. KELLY, INC., APPELLANT



Appeals from order of Court of Common Pleas of Adams County, Feb. T., 1969, No. 295, in case of Patricia A. Walton v. Harold M. Kelly, Inc. et al.

COUNSEL

Norman T. Petow, for claimant, appellant.

Donn I. Cohen, with him Robert J. Stewart, and Liverant, Senft and Cohen, for Harold M. Kelly, Inc., appellant.

Robert J. Brown, with him Kain, Brown & Roberts, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.

Author: Watkins

[ 218 Pa. Super. Page 29]

These are appeals from the decision of the Court of Common Pleas of Adams County reversing a finding by the Workmen's Compensation Board that an employer-employee relationship existed between the claimant's decedent, Lester Walton, and B. & P. Motor Express, Inc. in that the Board capriciously disregarded competent evidence; and the court below remanded the case to the Board for further consideration consistent with the court's holding.

Lester Walton, the decedent, was fatally injured in an accident on the Ohio Turnpike on April 19, 1965. At that time he was residing at R.D. 1, Abbottsville, Pennsylvania and was employed by Harold M. Kelly, Inc., as a tractor-trailer operator. He was operating a tractor trailer owned by Kelly and was transporting a load of steel coils from Baltimore, Maryland to Cleveland, Ohio through Pennsylvania under a "sub-lease"

[ 218 Pa. Super. Page 30]

    with B. & P. Motor Express, Inc. The lease agreement between Kelly and B. & P. named Kelly as "owner"; and B. & P. as "lessee". The agreement was executed in Baltimore, Maryland and the decedent signed on behalf of Kelly. B. & P. Motor Express, Inc. is a Maryland corporation operating terminals in Pennsylvania. Kelly is a Pennsylvania corporation with its principal place of business in Oxford, Pennsylvania.

Walton's widow filed two claim petitions under the Workmen's Compensation Act. She filed one against Kelly and the other against B. & P. Both petitions were consolidated for hearing before a referee. The referee concluded that Walton was the employee of Kelly at the time of the accident. The Board, on appeal, reversed the referee and found B. & P. to be the employer and that the Workmen's Compensation Board had jurisdiction over B. & P. The court below, on appeal, reversed the Board holding that its decision was based solely on the agreement and the Board had capriciously disregarded competent evidence in coming to the conclusion of law that the employer-employee relationship existed between the claimant and B. & P. The court below remanded the case to the Board for further proceedings in accordance with the court's interpretation of the agreement. Kelly appealed from the decision of the Board; B. & P. appealed from the decision of the Board on the ground that the Workmen's Compensation Board did not have jurisdiction; and the claimant filed a protective appeal in the event the jurisdiction question must be met.

If the judgment of the court below is affirmed the question of jurisdiction by B. & P. need not be considered. The only question before us is whether the Board capriciously disregarded competent evidence in finding that B. & P. had complete control of Walton at the time of the accident. It is clear that the Board's finding is

[ 218 Pa. Super. Page 31]

    based solely on interpretation of the trip lease. It found in its first opinion: "16. By the explicit terms of the trip-lease agreement between Harold M. Kelly, Inc. and B & P Motor Express, Inc. Kelly had surrendered to B & P the exclusive possession, control and use of the equipment being leased and the right to control the driver of the equipment." It is important to note that the findings of fact of the referee in its decision that Kelly was the employer were not reversed by the Board. The Board's decision was determined entirely on its interpretation of the lease. This was reaffirmed by the Board after rehearing.

The appeal raises two questions: (1) By whom was Walton employed at the time of the accident and (2) did the Workmen's Compensation Board have jurisdiction over B. & P.? If we affirm the court below as to Walton's employment by Kelly, it is not necessary to discuss the jurisdictional question.

As the court below said: "Our examination of that lease does not disclose any terminology which explicitly and clearly places the control of Walton in B. & P. The lease was a lease of equipment. The operator of that equipment is not mentioned anywhere in the lease. On the contrary, the lease specifically says that the lessor (Kelly) shall 'comply with all laws and regulations with respect to workmen's compensation insurance' and that the lessor (Kelly) will reimburse the lessee 'for any and all shortages, loss, damages or injury to cargo while in possession of (Kelly) his agents or employees' and that Kelly will reimburse B & P for fines resulting from violations of law by Kelly, ' his agents or employees.' (Emphasis ours). It appears to us that under the ...


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