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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND RONALD H. TEUFEL v. JOHN F. DUPES (03/15/76)

decided: March 15, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND RONALD H. TEUFEL
v.
JOHN F. DUPES, T/A DUPES' GARAGE AND AMERICAN STATE INSURANCE CO., INSURANCE CARRIER; ACE-DORAN HAULING & RIGGING CO. AND PROTECTIVE INSURANCE COMPANY, INSURANCE CARRIER. ACE-DORAN HAULING & RIGGING CO., APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ronald H. Teufel v. John F. Dupes, t/a Dupes' Garage, No. A -68949.

COUNSEL

David E. Lehman, with him McNees, Wallace & Nurick, for appellant.

Raymond F. Keisling, with him Will & Keisling, and James N. Diefenderfer, for appellees.

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

Author: Kramer

[ 24 Pa. Commw. Page 48]

This is an appeal by Ace-Doran Hauling and Rigging Company from a decision of the Workmen's Compensation Appeal Board which ordered Ace-Doran to pay compensation for total disability to Ronald H. Teufel. The Board reversed a referee's decision which had held that Teufel was an employe of John F. Dupes, t/a Dupes' Garage (hereinafter Dupes), rather than an employe of Ace-Doran. We hold that the Board erred and reverse.

John F. Dupes and Frances W. Dupes are the co-owners of Dupes' Garage. Ronald H. Teufel is the son of Mrs. Dupes and the stepson of Mr. Dupes. Teufel was the driver of a truck which was owned by Dupes but leased to Ace-Doran. On October 15, 1973, Teufel was seriously injured while in the course of his employment. Teufel subsequently filed two petitions for workmen's compensation which were consolidated for hearing. One petition alleged that Dupes was his employer, and the other alleged that Ace-Doran was his employer. The parties agreed that Teufel was injured in the course of employment

[ 24 Pa. Commw. Page 49]

    and was totally disabled as a result. The referee held that Dupes was Teufel's employer at the time of the accident and awarded benefits accordingly. Dupes appealed to the Board which held that Ace-Doran was Teufel's employer and reversed. Ace-Doran now appeals to this Court arguing that the Board erred, as a matter of law, by reversing the referee.

The question of whether a party is an employer of a workmen's compensation claimant is a question of law based upon findings of fact. Barnold Shoes, Inc. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 73, 308 A.2d 189 (1973). Part of our scope of review is to determine if the Board has committed an error of law. Commercial Laundry, Inc. v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 297, 331 A.2d 230 (1975).

Teufel, acting on behalf of Dupes, negotiated the terms of the lease between Dupes and Ace-Doran. The lease was admitted into evidence and it bears the signatures of John Dupes, Teufel, and a representative of Ace-Doran. The lease provided that Dupes would lease a truck to Ace-Doran for Ace-Doran's "exclusive possession, control, use and responsibility," and the Dupes would "furnish a competent, reliable and physically fit operator or driver. . . ." Dupes agreed in the lease to "pay all costs of operation" including "payments for injury or damages" to the driver and "workmen's compensation, unemployment insurance, social security or other similar taxes, insurance or benefits" on the driver. Ace-Doran agreed to pay Dupes 70% to 75% of the gross payment charged for delivery of freight, and Dupes agreed to make all "payroll, tax or other deductions required by any applicable law or regulation. . . ." The lease made no provision for compensation to the driver. Teufel was paid by Dupes on a percentage basis pursuant to an agreement between himself and Dupes.

[ 24 Pa. Commw. Page 50]

Selection of trips was made by Teufel in the following manner: When Teufel wanted to work, he would call the nearest Ace-Doran terminal and report his availability for service. He would be offered as many loads as were then available for transportation through that terminal. Teufel could elect to take any of the loads which were available or elect to take none of those loads if he was not satisfied with the trip, the merchandise to be transported, or the destination. Some loads included specific instructions by the customer that a load had to be picked up or delivered at a particular time. These customer requirements were factors which the owner or operator could consider in deciding whether to accept or reject an offered load. Ace-Doran did not control the selection of routes or manner of accomplishing the movement of the freight, although where special hauling permits were required or a particular route was known to be dangerous, some special instructions might be issued. Ace-Doran exercised no control over Teufel as to whether he worked, how often he worked, what trips he selected, or what terminal or terminals he called when looking for available loads. In all these matters, Teufel was free to make his own selection. In all these matters, Dupes, as owner of the truck, had the right to specify to his driver, Teufel, what decisions should be made in order to produce the most revenue. Dupes was satisfied to have Teufel make all these decisions on his behalf. The following excerpt from the testimony of Teufel, on direct examination by Dupes, summarizes the relationship between Dupes and Teufel.

"Q. Did you ever receive any instructions from Mr. Dupes as to what loads to accept and what routes to take?

"A. No, never. I may, if I can explain just a little bit here. He had little knowledge. He could have had control over me, let's put it this way, because he owned the ...


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