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DAILY EXPRESS v. COMMONWEALTH PENNSYLVANIA (10/12/79)

decided: October 12, 1979.

DAILY EXPRESS, INC. AND PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, INSURANCE CARRIER, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, CAROLINE CHAMBERLAIN AND LEWIS NOLTEE, SR., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Caroline Chamberlain v. Daily Express, Inc. and Lewis Noltee, No. A-71810.

COUNSEL

Wilhelm E. Shissler, with him J. Stephen Feinour, and Nauman, Smith, Shissler & Hall, for petitioners.

No appearance for respondents.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 46 Pa. Commw. Page 435]

This is an appeal from an order of the Workmen's Compensation Appeal Board (Board) affirming an award of benefits by a referee to Caroline Chamberlain (Claimant) based on her Fatal Claim Petition seeking workmen's compensation benefits from Daily Express, Inc. (Daily), and Lewis D. Noltee, Sr.

Noltee owned two tractor trailers which he leased from time to time to various carriers. On April 14, 1972, Daily and Noltee's authorized agent entered into two agreements (one covering the tractor and one the trailer) by which Noltee agreed to provide Daily with transportation for all loads offered by Daily and

[ 46 Pa. Commw. Page 436]

    accepted by Noltee. About a year prior to August 1, 1972, Robert Chamberlain (Decedent) was hired by Noltee to operate one of Noltee's rigs which was leased to Daily. On August 1, 1972, the Decedent died as the result of injuries sustained in a motor vehicle accident involving Noltee's rig while on a trip for Daily.

After extended hearings, the referee found that Daily was the Decedent's employer and awarded benefits to Claimant. The Board affirmed. In this appeal Daily contends that the referee's critical findings of fact are not supported by substantial evidence, that the evidence establishes as a matter of law that the Decedent was not an employee of Daily on August 1, 1972, and that the facts and law established that Noltee was the Decedent's employer at the time of the Decedent's death.

Although there is a substantial volume of law pertaining to a determination of employer-employee relationships, one rule remains inviolable: each case must be determined on its own facts. It seems evident from the facts in this case that the Decedent is what our law has come to regard as a "borrowed employee." The leading appellate case on borrowed employees is Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953). There, seven principles were enunciated by Chief Justice Horace Stern as applicable to borrowed employee cases. We summarize those principles as follows: (1) one who is in the general employ of one employer may be transferred to the service of another in such a manner that he becomes an employee of the second employer; (2) whether or not the transferred employee becomes the employee of the second employer depends on whether the first employer passes to the second employer not only the right to control the employee's work, but also his manner of performing it; (3) it is enough to establish the employer-employee

[ 46 Pa. Commw. Page 437]

    relationship if the employer has the right to control the employee's manner of performance of work, regardless of whether the right is ever exercised; (4) where one is engaged in the business of renting out trucks and furnishes a driver as part of the hiring of the truck, there is a presumption that the driver remains in the employ of his original employer until there is evidence that the second employer in fact assumed control over the employee's manner of performing his work; (5) facts which indicate that an employee remains in the service of his original employer include the original employer's right to select the employee to be loaned and to discharge him at any time and send another in his place, the loaned employee's possession of a skill or special training required by the work for the second employer, and employment at a daily or hourly rate for no definite period; (6) the fact that the second employer designates the work to be done and where it is to be done does not militate against the first employer-employee relationship; and (7) when the facts are undisputed, the determination of who is the employee's employer is one of law, but when the facts are disputed, the determination is one of fact.

Here, we do not believe that there is much dispute with respect to most of the facts found by the referee. However, there is, of course, a substantial dispute over the referee's ultimate conclusion of law. There is substantial evidence to support the referee's findings that: (1) Noltee had no written agreement of employment with the Decedent; (2) that Decedent drove Noltee's rig and received 30% of the gross revenues which the various trips produced less advances for expenses; (3) Noltee paid none of the Decedent's taxes or ...


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