Appeal from order of Superior Court, April T., 1969, No. 103, affirming order of Court of Common Pleas of Cambria County, June T., 1969, No. 365, in case of Frank Cox v. Frank Caeti and Leonard Pizzillo, t/a Johnstown Builders and Michael Filippelli.
Francis J. Leahey, Jr., with him Englehart, Creany, Englehart & Leahey, for appellants.
Robert S. Glass, for appellee.
Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri. Mr. Justice Jones took no part in the consideration or decision of this case.
This case comes to us on allowance of appeal from the per curiam affirmance by the Superior Court, Cox v. Caeti, 216 Pa. Superior Ct. 214, 263 A.2d 765 (1970), of a judgment entered in the Court of Common Pleas of Cambria County. In the Superior Court, Judge Hoffman filed a concurring and dissenting opinion in which Judge Cercone joined. Judge Spaulding noted his dissent.
The facts of the case are well stated by Judge Hoffman (at pages 215-216): "This action in trespass was instituted in the Court of Common Pleas of Cambria County by Frank Cox against Frank Caeti and Leonard Pizzillo, [trading as] Johnstown Builders, and Michael Filippelli. 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 for which Filippelli was engaged was completed in approximately two and one-half days.
"On one of these 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." (Footnote omitted)
Appellants' only argument on appeal*fn* is that it was error for the trial court to submit to the jury the question of whether Filippelli was an employe of Johnstown Builders or an independent contractor and that the lower court should have instead held Filippelli to be an independent contractor as a matter of law. It is true, of course, that only if Filippelli were found to be an employe of Johnstown Builders acting in the scope of his employment could Johnstown Builders be held liable for Filippelli's negligence. See, e.g., Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963).
We find Judge Hoffman's opinion persuasive and conclude, as he did, that the trial court should not have submitted this question to the jury but rather should have decided it as a matter of law. As was said in Green v. Independent Oil Co., 414 Pa. 477, 483-84, 201 A.2d 207 (1964): "In ascertaining whether a person is an employee or an independent contractor, the basic inquiry is whether such person is subject to the alleged employer's control or right to control with respect to his physical conduct in the performance of the services for which he was engaged: Joseph v. United Workers Association, 343 Pa. 636, 639, 23 A.2d 470; Feller v. ...