Appeal from order of Court of Common Pleas of Luzerne County, Jan. T., 1969, No. 780, in case of Violet M. Stewart, parent and natural guardian of the estate of Russell Hauze, a minor, and Violet M. Stewart, parent and natural guardian of said minor, in her own right v. Marvin J. Uryc.
David Kanner, for appellants.
Charles A. Shaffer, with him Flanagan, Doran, Biscontini & Shaffer, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Watkins, P. J., dissents.
[ 237 Pa. Super. Page 259]
The narrow issue presented by this appeal is whether the facts of record establish that the minor plaintiff was an employee of the defendant-appellee at the time he was injured. The lower court held that the record revealed the existence of an employer-employee relationship, thus precluding the minor plaintiff from suing in trespass.*fn1 Consequently, the court granted appellee's motion for summary judgment, pursuant to Rule 1035, Pa.R.C.P.
[ 237 Pa. Super. Page 260]
The basic facts are not in dispute. Appellee, as part of his private sanitation business, contracted with firms to pick up and empty trash containers. In the summer of 1966, minor plaintiff began to accompany appellee two or three times a week on various jobs. When appellee's truck approached a container, both he and the minor plaintiff would get out of the truck to "size up the container." Minor plaintiff would then stand on the truck's running board while appellee operated the vehicle. His job was to step off the truck, and tell appellee when to stop, so that appellee could "line up" the truck's platform with the container. On May 26, 1967, as minor plaintiff stepped off the truck, he was pulled under by the wheels and sustained various injuries.
On July 18, 1969, a complaint in trespass was filed, alleging that minor plaintiff's injuries resulted from appellee's negligent operation of his truck. An attorney for appellee's insurance carrier entered an appearance on behalf of appellee on September 10, 1969. By agreement of the parties and their respective counsel, depositions of the minor plaintiff and appellee were taken on December 16, 1969. Subsequently, on April 22, 1970, counsel for the insurance carrier filed a petition to withdraw his appearance, alleging that the insurance company's contract with appellee did not provide coverage for employees injured in the course of their employment, and that the depositions revealed that minor plaintiff was in fact an employee. Appellee filed an answer to the petition to withdraw, but the docket entries do not disclose any resolution of the motion. No further action was taken until October 18, 1974, when appellee filed an answer and new matter to the complaint. The answer simply denied the allegations contained in the complaint, and the new matter averred that minor plaintiff's sole remedy was under the Workmen's Compensation Act. On November 20, 1974, appellee filed a motion for summary
[ 237 Pa. Super. Page 261]
judgment which was granted on April 23, 1975. This appeal followed.*fn2
The resolution of the instant case hinges entirely on whether minor plaintiff was an employee of appellee. If so, summary judgment was properly entered as minor plaintiff's exclusive remedy would be under the ...