No. 2938 Philadelphia, 1983, Appeal from Order of the Court of Common Pleas, Civil Division, of Monroe County, No. 3238 Civil 1981.
Daniel P. Lyons, Stroudsburg, for appellant.
Robert E. Bogen, Saint Marys, for Motts, appellee.
Mark S. Love, Stroudsburg, for Drake, appellee.
Wieand, Del Sole and Popovich, JJ.
[ 341 Pa. Super. Page 429]
Jeffrey Melmed was injured when the motorcycle on which he was riding collided with a vehicle owned and operated by Faye L. Reiner Motts. Alice Drake was a passenger in the Motts vehicle. She was an elderly lady who had been taken to dinner by Ms. Motts, her private duty nurse. Melmed filed a complaint naming both Motts and Drake as defendants. The complaint contained an averment that at the time of the accident Motts had been the employee of Drake and had been acting within the scope of her employment. After the pleadings were closed, Drake filed a motion for summary judgment. The trial court concluded from Drake's depositions that she had not been the employer of Motts and had not had the right to control the manner in which Motts performed her duties. Therefore, the court entered a summary judgment in favor of Drake. Melmed appealed. We reverse.
In Raffensberger v. Moran, 336 Pa. Super. 97, 485 A.2d 447 (1984), this Court reviewed the principles applicable to summary judgments as follows:
"Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Community Medical Services of Clearfield Inc. v. Local 2665, AFSCME, 292 Pa. Super. 238, 242, 437 A.2d 23, 25 (1981). See also: Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 140, 476 A.2d 928, 930 (1984); Rybas v. Wapner, 311 Pa. Super. 50, 54,
[ 341 Pa. Super. Page 430457]
A.2d 108, 109 (1983); Pa.R.C.P. 1035(b). In passing upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa. Super. 121, 123, 469 A.2d 212, 213 (1983). "It is not part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried." Thorsen v. Iron and Glass Bank, supra, 328 Pa. Super. at 141, 476 A.2d at 931; Wilk v. Haus, 313 Pa. Super. 479, 482, 460 A.2d 288, 290 (1983). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa. Super. 497, 500, 450 A.2d 36, 38 (1982).
Id., 336 Pa. Superior Ct. at 102, 485 A.2d at 450. See also: Barber v. Harleysville Mutual Insurance Company, 304 Pa. Super. 355, 358, 450 A.2d 718, 719-720 (1982).
In an action to recover damages vicariously for injuries resulting from an automobile accident, it is necessary for the plaintiff to prove not only that the driver was the defendant's servant, but that such servant was at the time engaged in his master's business. Klein v. Klein, 311 Pa. 217, 219, 166 A. 790, 791 (1933). A servant, in law, is "a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control." Restatement (Second) of Agency § 220(1) (1958). "It is not . . . the fact of actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor." Feller v. New Amsterdam Casualty Co., 363 Pa. 483, 486, 70 A.2d 299, 300 (1950), quoting 27 Am.Jur. Independent Contractor § 6, at 487 (1940). See also: ...