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NORTH PENN TRANSFER v. COMMONWEALTH PENNSYLVANIA (08/28/81)

decided: August 28, 1981.

NORTH PENN TRANSFER, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, SANDRA MICHALOVICZ, W/O STEVEN ET AL., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Claim of Sandra Michalovicz w/o Steven v. Charles & Robert Huber t/a Huber Brothers Trucking Company and North Penn Transfer, Inc., and Paul Pries & Edward Schaub, individually t/a S & P Transportation, Inc., No. A-75878.

COUNSEL

Lowell A. Reed, Jr., Rawle & Henderson, for petitioner.

Robert L. Felice, with him John F. McElvenny and Joel Cardis, Goldberg, Felice & Isicrate Associates, LTD., for respondents.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 61 Pa. Commw. Page 470]

North Penn Transfer, Inc. (North Penn) appeals from an order of the Workmen's Compensation Appeal Board which affirmed a referee's award of benefits to Sandra Michalovicz (Claimant), widow of

[ 61 Pa. Commw. Page 471]

Steven Michalovicz, and their two children. We affirm.

The origin of this case dates back to December 27, 1974 when Steven Michalovicz (Decedent) was involved in a fatal single vehicle accident near Syracuse, New York. Claimant subsequently filed three fatal claim petitions naming three defendants. The first petition was filed against North Penn, lessee of the tractor-trailer which the Decedent was driving at the time of the accident. The second petition named Charles and Robert Huber, t/a Huber Brothers Trucking Co. (Huber Brothers) as defendant. Huber Brothers owned the truck which Decedent was driving at the time of the accident. Finally, a third petition was filed against Edward Schaub and Paul Pries, individually and t/a S. & P. Transportation, Inc. (S. & P. Transportation), a separate corporation which operated a special commodities division for North Penn thereby exercising an unused portion of North Penn's Interstate Commerce Commission (I.C.C.) certificate.

The referee conducted several consolidated hearings and, based on the record thereby established, concluded that Decedent had died while in the course of his employment with North Penn. North Penn appealed the referee's decision to the Board which affirmed. The instant appeal followed.

Two issues have been raised for our consideration: 1) whether the Board and referee erred in concluding that Claimant proved the existence of an employer-employee relationship between the Decedent and North Penn and 2) whether the referee and Board erred in concluding that an agency relationship existed between North Penn and S. & P. Transportation.

Claimant, of course, had the burden of proving that at the time of Decedent's death, an employer-employee relationship existed. Workmen's Compensation Appeal Board v. Phillips, 29 Pa. Commonwealth Ct. 613,

[ 61 Pa. Commw. Page 472372]

A.2d 63 (1977). The issue of whether a particular party was the employer of the Decedent is a question of law based upon findings of fact. Workmen's Compensation Appeal Board v. Dupes, 24 Pa. Commonwealth Ct. 47, 353 A.2d 908 (1976). Where, as here, the party with the burden of proof has prevailed before the referee and the Board has taken no additional evidence our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was made or a necessary finding of fact was unsupported by substantial evidence. Interstate Truck Service, Inc. v. Workmen's Compensation Appeal Board, 42 Pa. Commonwealth Ct. 22, 400 A.2d 225 (1979).

The existence of an employer-employee relationship must be determined on a case by case basis. While there is no standard approach in cases of this nature it is clear that the key element is whether the alleged employer had the right to control the work to be done and the manner in which the work is performed. Martin Trucking Co. v. Workmen's Compensation Appeal Board, 30 Pa. Commonwealth Ct. 367, 373 A.2d 1168 (1977). In the instant case, in order to resolve the issue of whether North Penn was correctly found to be Decedent's employer it is important to understand the business relationship among the three named defendants.

North Penn is a general freight carrier which in 1974 operated, for the most part, between New York and Washington, D.C. North Penn possessed an I.C.C. Certificate which authorized that operation as well as the movement of special commodities throughout a ten-state area. Since North Penn did not make full use of the latter portion of its certificate, it agreed in August, 1974 that S. & P. Transportation would ...


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