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STEWART v. URYC (12/01/75)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 1, 1975.

STEWART, ET AL., APPELLANTS,
v.
URYC

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.

COUNSEL

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.

Author: Hoffman

[ 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 Workmen's Compensation Act; if not, minor plaintiff was free

[ 237 Pa. Super. Page 262]

    to pursue his common law remedies and summary judgment was improperly entered. Under ยง 22 of the Act "[t]he term 'employe', as used in this act is declared to be synonymous with servant, and includes -- All natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer . . ."*fn3 Before a person

[ 237 Pa. Super. Page 263]

    can qualify under Workmen's Compensation, therefore, a master-servant relationship must exist. "A master-servant relationship exists within the meaning of the Act when it is established that a contract of employment, express or implied, was in being at the time of the injury." Barr v. B & B Camper Sales, 7 Pa. Commonwealth Ct. 323, 326, 300 A.2d 304, 306 (1973) (footnote omitted). See also, Brock v. Bowser, 376 Pa. 209, 102 A.2d 121 (1954); Harris v. Seiavitch, 336 Pa. 294, 9 A.2d 375 (1939); McManus v. Kuhn, 194 Pa. Superior Ct. 544, 168 A.2d 618 (1961); Fanning v. Apawana Golf Club, 169 Superior Ct. 180, 82 A.2d 584 (1951); Sechrist v. Kurtz Brothers, 147 Pa. Superior Ct. 214, 24 A.2d 128 (1942). Some decisions treat this issue in terms of whether the employee was a "volunteer," in the sense of not performing services for a valuable consideration as required by the Act. See, e.g., Marcus v. Frankford Hospital, 445 Pa. 206, 283 A.2d 69 (1971). Other decisions focus on the traditional tort concept of the master-servant relationship: the right of the employer to control the result of the work and to direct the manner in which the work is done. See, e.g., Ragano v. Socony Vacuum Oil Co., 376 Pa. 271, 101 A.2d 686 (1954); Potash v. Bonaccurso, 179 Pa. Superior Ct. 582, 117 A.2d 803 (1955); Hollen v. Workmen's Compensation Appeal Board and John Dospoy, 14 Pa. Commonwealth Ct. 209, 321 A.2d 733 (1974). Despite the differing emphasis of the various decisions, it is apparent that one of the necessary factors to create an employer-employee relationship is the mutual assent of both parties.*fn4 Whether or not the relationship exists, however,

[ 237 Pa. Super. Page 264]

    can only be determined by examining the peculiar facts of each case. Hollen v. Workmen's Compensation Appeal Board and John Dospoy, supra.

The testimony of both minor plaintiff and appellee in the instant case negates the existence of an express contract of employment. When asked whether minor plaintiff worked for him during the summer of 1966, appellee responded: "Work? I don't understand what you are driving at. You keep saying work, work, work. There was no specified contract that he had to keep. When he had something else to do he would do it." Therefore, an employer-employee relationship was established only if the existence of facts indicate an implied contract: "The Workmen's Compensation Act was not intended to limit hiring contracts to express contracts, to the exclusion of that class of contracts which arise by implication of law where circumstances appear which according to the ordinary course of human dealings show a mutual intention to contract." Fanning v. Apawana Golf Club, supra at 183-184, 82 A.2d at 585.

The testimony of both parties evidences a very informal relationship. Appellee testified that minor plaintiff had no fixed salary, but "[i]f I had a couple bucks, I would give it to him," and that there were many occasions when minor plaintiff worked for no compensation at all. The following excerpt from the deposition of minor plaintiff is instructive:

"Q. When did you make arrangements with Mr. Uryc you wanted to go for a ride?

"A. The day before.

"Q. How come you tell him the day before you wanted to go out with him on May 26, 1967? What caused you to do that?

[ 237 Pa. Super. Page 265]

"A. Well, I usually just ask him to go if I didn't have anything else to do. . . .

"Q. What did you get out of it, if anything, besides the pleasure of going riding with him?

"A. Money. He gave me a couple bucks for helping.

"Q. Was there any specific understanding about paying you any specific amount?

"A. No.

"Q. If he didn't pay you anything it was all right?

"A. Yes.

"Q. And whatever he paid you it was all right?

"A. Yes. . . ."

While each case must ultimately rest on its own facts, it is helpful to refer to previous opinions where similar factual situations have arisen. In Harris v. Seiavitch, supra, the minor plaintiff was performing an errand for his mother when he was approached by defendant, and asked whether he would like to ride on the back of defendant's milk truck to prevent children from jumping on the truck while defendant made deliveries. Minor plaintiff agreed and was promised "something" in return. Minor plaintiff sued in trespass for damages for injuries sustained while he assisted defendant. The Supreme Court affirmed the judgment and noted that "the evidence merely established a promise of a gift or gratuity and that there was no contract for wages. . . . He had never been employed, nor did he have any intention of being employed at the time of the accident. The assent of both parties is essential to create the relation of master and servant: Corbin v. George, 308 Pa. 201, 204. In the present case it is clearly apparent that the boy went along with defendant for the 'fun of it' and that neither he nor defendant intended to create such a relationship." Harris v. Seiavitch, supra at 297-98, 9 A.2d at 376. While Harris lacks the continued relationship present in the instant case, in both, the minor plaintiff's primary motive for assisting the defendant was enjoyment.

[ 237 Pa. Super. Page 266]

    present case, appellee did not pay social security taxes for minor plaintiff and did not carry minor plaintiff as an employee on his records.

Although the question is a close one, we believe that the record does not support the conclusion that minor plaintiff was an employee of appellee at the time of the injury. While no one fact is dispositive, the totality of the circumstances does not lead to the conclusion that a contract of employment existed between minor plaintiff and appellee by tacit understanding: minor plaintiff worked when he pleased, and was under no obligation to render any service; minor plaintiff was free to refuse to do any work; minor plaintiff's remuneration was not regular, but depended entirely on the available resources of appellee; minor plaintiff assisted appellee because he enjoyed riding on the truck, and not because he sought compensation for regular employment; and, finally, appellee failed to carry minor plaintiff on his payroll and did not pay social security taxes or carry Workmen's Compensation insurance for him. Thus, the lower court's grant of summary judgment was improper.*fn6

[ 237 Pa. Super. Page 268]

The order of the lower court is reversed, and the case is remanded for trial.

Disposition

Order reversed and case remanded for trial.


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