John S. Thome, Jr., Doylestown, for appellants, Schacht and Wilson, at No. 588, and appellant, Quakertown Transport Co., Inc., at No. 589.
Alan Dion, Morrisville, for appellant, Jacoby Transport Systems, at No. 588.
James C. Bowen, Sellersville, for appellee, Michael E. Lane. Frederick Ely Smith, Doylestown, for appellee, M & M Transp. Co.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 70]
These appeals arise from an order of the lower court granting the motion for summary judgment on behalf of M & M Transportation Company (M & M) and denying the summary judgment motions of appellants Harold Schacht (Schacht) and Quakertown Transport Company, Incorporated (Quakertown). We hold the entry of summary judgment on behalf of M & M to be in error, and that the order denying the summary judgment motions of Schacht and Quakertown to be an interlocutory order and not appealable to this court. The facts giving rise to this dispute are as follows.
On September 18, 1974, at approximately 3:30 a. m., plaintiff, Michael E. Lane, was driving east on Route 313 in
[ 260 Pa. Super. Page 71]
Bucks County, when he collided with a tractor-trailer operated by Melvin Wilson. In his deposition, Wilson testified that the collision occurred as he was backing the tractor-trailer into the driveway of his home located on the south side of the two-lane Route 313. He started from the westbound lane and, seeing no traffic approaching, backed his forty-foot trailer across the eastbound lane. When the rear wheels of the trailer entered his driveway, he felt a jerk as the plaintiff's eastbound vehicle struck the underside of the trailer at a 90 degrees angle and emerged from the other side. No other parties were involved in the collision other than Lane and Wilson.
Lane filed a suit in trespass against Schacht and Wilson, who later joined M & M and Jacoby Transport Systems (Jacoby) as additional defendants. Several months later Lane filed a second suit against Quakertown. Both cases were consolidated by stipulation of counsel with court approval. After depositions, Schacht, Quakertown, M & M and Jacoby moved for summary judgment. The principal contention of all was that they could not be held vicariously responsible since Wilson was not under their control at the time of the accident. To understand these contentions it is necessary to expand at length upon the relationships of the various parties.
At the time of the accident on September 18, 1974, the tractor part of the rig being driven by Melvin Wilson was owned by Harold Schacht, while the trailer portion was owned by Quakertown Transport Company. Schacht was a principal shareholder in Quakertown and had leased his tractor to that company. The entire rig (tractor and trailer) was in turn leased to M & M on September 14, 1974, under a long term lease, and M & M affixed its emblems to the sides of the trailer that very day. Although Schacht had leased his tractor to Quakertown, and Quakertown thus retained control of both the tractor and trailer, for some unexplained reason, the lease with M & M listed Schacht as the owner of the rig. The driver, Melvin Wilson, signed the lease on behalf of the owner, an action conceded by all to be within
[ 260 Pa. Super. Page 72]
his authority, and Thomas Powers, the dispatcher for M & M, signed as the agent for that company. The lease agreement did not provide for any monthly or weekly rental, and M & M was only required to pay for the actual use of the vehicle. The actual course of performance between the parties was that M & M paid Wilson directly whenever he made a haul for them, and then sent a check to Quakertown for the use of the rig. On the date that Wilson signed the lease with M & M, he was told by their agent, Thomas Powers, that the division of M & M for which Wilson would be hauling was new and may not have enough work to keep him employed on a full-time basis. Powers ...