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THOMAS JOSEPH LEGO v. COMMONWEALTH PENNSYLVANIA (05/26/82)

decided: May 26, 1982.

THOMAS JOSEPH LEGO, DECEASED, JOHNETTA F. LEGO, WIDOW, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, D'AGATA NATIONAL TRUCKING CO. AND HOME INSURANCE COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Thomas Joseph Lego, deceased, Johnetta F., widow v. D'Agata National Trucking Co., No. A-79181.

COUNSEL

Edward Benoff, with him Marc Alan Krefetz, for petitioner.

Ronald F. Bove, Swartz, Campbell & Detweiler, for respondent, D'Agata National Trucking Co.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Rogers. Judge Mencer did not participate in the decision in this case.

Author: Rogers

[ 66 Pa. Commw. Page 595]

Johnetta F. Lego, the widow of Thomas Joseph Lego, has appealed from an order of the Workmen's Compensation Appeal Board (Board) reversing a referee's award of benefits based on her Fatal Claim Petition seeking workmen's compensation benefits from Martin Matsinger and from D'Agata National Trucking Co. (D'Agata). Matsinger was the owner of a tractor which he leased with Thomas Joseph Lego as driver to D'Agata. Thomas Joseph Lego was killed while driving the tractor trailer for D'Agata on the Pennsylvania Turnpike.

Mrs. Lego filed a Fatal Claim Petition against both Matsinger and D'Agata but Matsinger had no workmen's compensation insurance, could not be served with the Fatal Claim Petition, and has since died and there are no workmen's compensation benefits available from that source.

The referee, after hearings, wrote a comprehensive decision supporting an award of benefits to the widow against D'Agata which he concluded was the decedent's employer. The Board reversed the referee's decision and award and dismissed the Fatal Claim Petition. We reverse the Board's action and order the benefits awarded by the referee to be reinstated.

At issue, of course, is whether Thomas Joseph Lego was D'Agata's employee at the time of his fatal accident on the Pennsylvania Turnpike. The general principles of law pertinent to this, the so-called "borrowed servant," class of case, are those set out in Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953) as follows:

1. One who is in the general employ of another may, with respect to certain work, be transferred to the service of a third person in such a way that he becomes, for the time being and in

[ 66 Pa. Commw. Page 596]

    the particular service which he is engaged to perform, an employe of that person: . . . .

2. The crucial test in determining whether a servant furnished by one person to another becomes the employe of the person to whom he is loaned is whether he passes under the latter's right of control with regard not only to the work to be done but also to the manner of performing it : . . . .

3. A servant is the employe of the person who has the right of controlling the manner of his performance of the work, irrespective of whether he actually exercises that control or not: . . . .

4. Where one is engaged in the business of renting out trucks, automobiles, cranes, or any other machine, and furnishes a driver or operator as part of the hiring, there is a factual presumption that the operator remains in the employ of his original master, and, unless that presumption is overcome by evidence that the borrowing employer in fact assumes control of the employe's manner of performing the work, the servant remains in the service of his original employer: . . . .

5. Facts which indicate that the servant remains the employe of his original master are, among others, that the latter has the right to select the employe to be loaned and to discharge him at any time and send another in his place, that the lent servant has the skill of a technician or specialist which the performance of the work requires, that the hiring is at a rate by the day or hour, and that the employment is for no definite period: . . . .

[ 66 Pa. Commw. Page 5976]

. The mere fact that the person to whom a machine and its operator are supplied points out to the operator from time to time the work to be done and the place where it is to be performed does not in any way militate against the continuance of the relation of ...


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