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filed: May 21, 1982.


No. 1046 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action - Law, at No. 172 C.D. 1976, Mercer County.


P. Raymond Bartholomew, Sharon, for appellant.

Charles F. Gilchrest, Sharon, for appellees.

Price, Brosky and Montemuro, JJ. Brosky, J., files concurring opinion.

Author: Montemuro

[ 302 Pa. Super. Page 308]

This is a trespass action brought by Donald Frederick Ashman, truck driver, and his wife, Starr Inez Ashman, the appellees, for injuries he sustained while working on the property of the Sharon Steel Corporation, the appellant. Appellant raised the defense of the bar of the Pennsylvania Workmen's Compensation Act in its Answer, and, by stipulation of counsel, a bifurcated trial was held, with testimony on this threshold issue taken before the trial judge alone on September 17, 1979, resulting in an order September 20, 1979 which found that appellant was not protected from a common-law negligence action. Thereafter trial was held on issues of liability and damages, and a jury returned a verdict in favor of appellees in the amount of $151,000.00.

Appellant appealed to this court on several grounds: whether the bar of the Workmen's Compensation Act applied; whether there was a breach of duty to support liability on its part; whether the verdict was excessive. We affirm the verdict of the court below.


The facts of the instant matter are generally not in dispute. The jury resolved the single factual dispute in favor of appellees and the resume of the facts was found as follows:

[ 302 Pa. Super. Page 309]

Appellant and Williams Brothers Trucking [hereafter Trucking Co.] have had a long-term relationship in which the Trucking Co. rents a portion of the appellant's property for its business and also contracts to supply trucking services to the appellant on a regular basis.

The contract in force between appellant and Trucking Co. at the time the instant injury took place, provided for leasing of trucks along with their operators for a single hourly rate to do a variety of jobs. The rate varied depending upon the type of vehicle used, but in every case it included use of the truck, services of a driver, fuel, insurance, and all other expenses.

An employee of the appellant called the Trucking Co. daily to order the number and type of trucks and to designate the jobs to be done, the number of regular hours and the amount of overtime. In the month in which the instant accident occurred, the "Euclid" vehicles and their drivers clocked 1,332 hours of work for appellant; other types of vehicles clocked an additional 377.5 hours.

The drivers were teamsters, and had been trained in the operation of their vehicles by the Trucking Co. Each man was responsible to report early and check out his vehicle at the Trucking Co. before going on his assignment for the day. A man might be assigned to appellant for work, or he might be sent on other business, hauling "over the road" for other customers. Drivers who went onto appellant's property had complete responsibility for their vehicles but took direction from appellant's employees as to such matters as where to place the truck for loading or where to dump their loads.

On one occasion, appellee had refused to load drums onto his vehicle when requested, and the appellant complained to the Trucking Co. He was repremanded by the owner of the Trucking Co. for not being cooperative, and for a time was taken off assignment to work on the appellant's property.

On the date of the accident, plaintiff drove his "Euclid" to the site of the scale pit at appellant's plant pursuant to his morning instructions from the Trucking Co. He waited for

[ 302 Pa. Super. Page 310]

    a crane to arrive, and he backed his truck into position as indicated by the crane operator before leaving the vehicle as a safety precaution.

The bucket of the crane refused to work and repair was necessary. The bucket was set on one side of the pit while the crane operator worked on the cables. As he was finishing, the operator told appellee, "Get that cable and bolt and put it in the bucket and we will get this damn show on the road." (N.T.29)

Appellee, remembering that his previous refusal to do anything other than teamster's work had been ill-received, attempted to follow these instructions. Although the crane operator had climbed the other side of the bucket earlier, appellee found he was unable to do so unaided. He therefore placed a wooden pallet against the side of the bucket as a rudimentary ladder and proceeded to climb the "rungs." The bucket shifted in the pebbly soil and flipped appellee onto a railroad track, where his left arm hit the ties and sustained permanent damage.


Appellant argues strongly that it occupies the position of "employer" toward appellee both under the language of the Workmen's Compensation Act and under the Master Servant relationship in common law. Alternatively, it argues that appellee was a trespasser on its property or at most was a "business-invitee" of a lower order, and that it did not breach any duty of care owed to appellee and cannot be liable for his damages. Finally, appellant argues that the combined verdicts awarded husband and wife appellees were excessive.

Whether appellant qualified as an employer under statutory language or under common law will be the first question considered. We affirm the holding of the lower court that it was not, but on different reasoning.

[ 302 Pa. Super. Page 311]

This wording excludes from consideration any contractor "engaged in an independent business . . . in which he serves persons other than the employer in whose service the injury occurs." The Trucking Co. serves companies other than appellant, which places it in the "independent business" category and takes it out of the definition of "contractor" in § 52.

The term "contractor" does, however, by definition at § 25, include contractors in the business of "supplying laborers or assistants." Even assuming that a teamster whose services are rented out on an hourly basis falls into the category of "laborer or assistant" -- a matter which we need not decide -- plaintiff here was supplied in conjunction with the equipment he drove. Under Pennsylvania law, this is a significant distinction, see discussion infra.

Additionally, "contractor" at § 25 also includes a "subcontractor" to whom a "principal contractor" has sublet some portion of the work the principal contractor has undertaken. Appellant is not a "principal contractor," but an owner of the property. Our courts have held that this distinction is significant; an independent contractor's employe is not ordinarily considered to become an "employe" of the owner of the property for Compensation Act purposes. Brooks v. Buckley & Banks, 291 Pa. 1, 139 A. 379 (1927); Freeny v. William Penn Broadcasting Co., 180 Pa. Super. 434, 118 A.2d 275 (1955).

Therefore, under the instant facts, we find that contrary to appellant's argument, appellant, under the relevant statutory language of the Workmen Compensation Act, is not the "employer" of the appellee. To recapitulate in brief, he remains the employe of the Trucking Co. for the following reasons: (1) the Trucking Co. supplies a number of customers besides appellant; (2) it is also in the business of leasing equipment and operators in a single package; (3) it leased the equipment and services of its operator directly to the appellant itself, the property "owner," and not to a "principal contractor" subleasing a part of the work to be done on an owner's property.

[ 302 Pa. Super. Page 314]


This disposition under statutory language does not entirely dispose of the matter. Case law should also be examined in the determination of a master-servant relationship, a concept that existed in common law long before the Workmen's Compensation Act was drafted and which is specifically incorporated into the wording at § 22, see citation supra. The classic test determining the ...

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