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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND DOROTHY SOREY BOHAR v. NAVAJO FREIGHT LINES (05/07/75)

decided: May 7, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND DOROTHY SOREY BOHAR, WIDOW OF JAMES S. SOREY, APPELLEES,
v.
NAVAJO FREIGHT LINES, INC. AND SECURITY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS. WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND DOROTHY SOREY BOHAR, WIDOW OF JAMES S. SOREY, APPELLEES, V. NAVAJO FREIGHT LINES, INC., APPELLANT



Appeals from the Order of the Workmen's Compensation Appeal Board in case of Dorothy Sorey Bohar, Widow of James S. Sorey, v. Navajo Freight Lines, Inc., No. A-68051; and Dorothy Sorey Bohar, Widow of James S. Sorey, v. Charles Jones, No. A-68052.

COUNSEL

William L. Kinsley, with him Charles Jay Bogdanoff and Albert C. Gekoski, for appellant.

Gerald J. Haas, for appellee, Bohar.

John F. McElvenny, for appellee, Jones.

James N. Diefenderfer, for appellee, Board.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 19 Pa. Commw. Page 27]

On the evening of October 10, 1966, James S. Sorey (Sorey) was operating a tractor-trailer rig loaded with 38,000 pounds of heavy equipment and traveling west across Colorado. His destination was Burbank, California, but his fate was such that he would not even reach downtown Pagosa Springs. Upon starting to descend from the top of Wolf Creek Pass, the brakes of his truck became overheated and then caught fire, with the result that Sorey was forced to maneuver his runaway vehicle down and around the hairpin curves that C. W. McCall has memorialized by his folk song "Wolf Creek Pass." Sorey's inability to control his brakeless truck resulted in the vehicle's leaving the highway and plummeting down a steep bank. This accident proved fatal to Sorey.

On January 25, 1968, Dorothy Sorey (claimant)*fn1 filed a fatal claim petition against Navajo Freight Lines, Inc. (Navajo) and also a fatal claim petition against Charles Jones (Jones). These petitions were filed on behalf of the claimant and her dependent children as a consequence of the death of her husband, James S. Sorey. The referee held that he was an employe of Navajo and awarded compensation. The Workmen's Compensation Appeal Board agreed with the referee and dismissed Navajo's appeal. The instant appeal followed and we affirm.

[ 19 Pa. Commw. Page 28]

The crucial question is whether claimant's decedent was, at the time of his death, an independent contractor or an employe of either Navajo or Jones. Although the law relative to this question is settled, its application to any given fact situation is often a difficult task. The facts of this case make that task especially difficult.

Concerning the applicable law, we stated in J. Miller Co. v. Mixter, 2 Pa. Commonwealth Ct. 229, 232, 277 A.2d 867, 869 (1971), the following:

"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 a part of regular business of the employer, and also the right of employer to terminate the employment at any time. Feller v. New Amsterdam Casualty Co., 363 Pa. 483, 70 A.2d 299 (1950); Johnson v. Angretti et al., 364 Pa. 602, 73 A.2d 666 ...


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