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MARTIN TRUCKING COMPANY AND CONTINENTAL INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (05/31/77)

decided: May 31, 1977.

MARTIN TRUCKING COMPANY AND CONTINENTAL INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD, AND WALTER ANDRUSHENKO AND CLARK SEARFOSS, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Walter Andrushenko v. Clark Searfoss and Martin Trucking Company, No. A-71110.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for appellant.

Carmen F. Lamancusa, with him Caiazza & Lamancusa, and James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish, Jr.

[ 30 Pa. Commw. Page 368]

This is an appeal by Martin Trucking Company (Martin) from a determination by the Workmen's Compensation Appeal Board (Board) that Martin was the employer of Walter Andrushenko (Claimant) and,

[ 30 Pa. Commw. Page 369]

    as such, was responsible for the payment of benefits due him under The Pennsylvania Workmen's Compensation Act*fn1 as a result of his being injured on the job and totally and permanently disabled. We affirm.

The issue in this case is one which we have confronted before; namely, when the owner of a truck leases it to another and supplies the driver, is the driver an employe of the lessor or of the lessee?

On August 2, 1971, Claimant fell from atop a coal truck and broke his right leg while checking the load. He was hospitalized and the leg was later amputated. The truck was owned by Clark Searfoss (Searfoss) and leased to Martin. Martin, in turn, was under contract with Bessemer Cement Company (Bessemer) to haul coal from various mines to Bessemer's plant. Bessemer would instruct Martin from which mines coal was to be picked up the following day; Martin then would assign one of the truck drivers to make a given pickup. The next day, the drivers, who usually kept their trucks at home, would drive directly to their assigned destinations. Martin, which held licenses from the Public Utilities Commission and the Interstate Commerce Commission, specified the routes over which the trucks were to travel and posted bond for those routes. Throughout his employment, Claimant received neither orders nor destination or route information from Searfoss.

Martin had the right to approve all drivers and, in conformity with Interstate Commerce Commission regulations, required a physical examination and a certification of fitness before giving its approval. Martin reimbursed Searfoss on a tonnage basis, and Searfoss then paid Claimant out of those funds at a rate arrived at by agreement between Claimant and Searfoss. No money passed directly from Martin to Claimant, but Martin deducted from its payment to Searfoss

[ 30 Pa. Commw. Page 370]

Claimant's Social Security, pension, union dues, and the cost of life insurance and public liability and property damage insurance policies, which had been subscribed by Martin and which named ...


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