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WALTON v. HAROLD M. KELLY (08/01/72)

decided: August 1, 1972.

WALTON
v.
HAROLD M. KELLY, INC. AND B & P MOTOR EXPRESS, INC.



Appeal from the Order of the Workmen's Compensation Board, in case of Lester Walton, Deceased, Patricia A. Walton, Widow v. Harold M. Kelly, Inc. and B & P Motor Express, Inc., Docket No. A-48122.

COUNSEL

Donn I. Cohen, with him Robert J. Stewart and Liverant, Senft and Cohen, for appellant.

Norman T. Petow, for appellee, Walton.

Robert J. Brown, with him Kain, Brown & Roberts, for appellee, B & P Motor Express, Inc.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 6 Pa. Commw. Page 237]

In this appeal from a decision and order of the Workmen's Compensation Board of Review, we are called upon to determine the true employer-employee relationship between Lester Walton and the two named defendants. Each named defendant contends that, for the purposes of workmen's compensation, the other was the employer of Walton.

Walton, a resident of Pennsylvania, was employed by Harold M. Kelly, Inc., as a tractor-trailer operator. On April 8, 1965, Walton, on behalf of Kelly, Inc., entered into an agreement with B & P Motor Express in Baltimore, Maryland, which constituted a lease by Kelly (Lessor) to B & P (Lessee) of the equipment operated by Walton to ship property from Baltimore to Cleveland, Ohio. Under the agreement, Walton picked up a load of steel coils in Dundalk, Maryland, received a bill of lading from the B & P office, and proceeded on the trip which was to terminate at Cleveland. Walton passed through Pennsylvania stopping at a Kelly terminal to refuel and later while traveling in Ohio, lost control of the vehicle and the resultant accident took his life.

The lease provided, among other things, that "[s]econd party (Kelly) does hereby lease to first party (B & P Motor) the above described motor vehicle. The said equipment shall, during the term of this lease, be deemed to be under the exclusive possession, control and use of the lessee (B & P Motor) except that lessee (B & P Motor) reserves the right to sub-lease said equipment. Lessor (Kelly) shall not use said equipment

[ 6 Pa. Commw. Page 238]

    for his own use or benefit during the terms of this lease."

The widow of the driver filed a death claim against each of the companies.*fn1 The Workmen's Compensation Board of Review initially found that an employer-employee relationship existed between the decedent and B & P Motor Express. This decision was reversed by the Court of Common Pleas of Adams County. That court determined that Kelly was the employer and remanded the case to the Board for further consideration consistent with the court's holding. That decision and order of the Adams County Court of Common Pleas was affirmed by the Pennsylvania Superior Court in Walton v. H.M. Kelly, Inc., 218 Pa. Superior Ct. 28, 269 A.2d 347 (1970). On remand, the Workmen's Compensation Board issued an order declaring Kelly to be the employer. From that decision, Kelly has appealed to this Court contending, inter alia, (1) that there was no actual reconsideration of the case and that the Board simply issued an order holding Kelly as the employer; and (2) that upon remand, the provisions of the Interstate Commerce Act*fn2 relating to equipment lease arrangements should have been considered, and that had these provisions been considered B & P would clearly have been held to be the employer. Our function in this appeal ...


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