Herman Beckinger's and M. Carpellotti's, "independent, joint, and concurrent negligence" and 2) that Moore was the employee of the aforementioned defendants.
The answer and crossclaim of M. Caupellotte represented that Frank J. Carpellotti t/d/b/a Carp Transit was the proper party defendant. M. Carpellotti
Trucking is a different company operated by Frank Carpellotti's mother and is not involved in this action.
An "open" lease agreement existed between Frank J. Carpelletti and Beckinger whereby Carpellotti, who possessed a Pennsylvania Public Utilities Commission (hereinafter PUC) permit to operate a public haulage concern, arranged hauling jobs for Beckinger and supplied the necessary PUC authority. In this particular case, Carpellotti telephoned Beckinger and requested that Beckinger haul coal to the Pennsylvania Electric Company's Erie, Pennsylvania location.
Regarding the instant Motion for Summary Judgment, defendant Carpellotti asserts there is no genuine issue as to any material fact and he is entitled to judgment as a matter of law. To this end, he raises the following questions for this Court's review: (1) whether Defendant Carpellotti can be held liable for any negligence of Moore and Beckinger absent a master-servant or agency relationship; (2) whether Defendant Carpellotti can be held liable based upon his lease with Beckinger since an International tractor-trailer truck and not a Mack trailer truck was involved in the accident and (3) whether Plaintiff's action is barred by the applicable statute of limitations.
In order to grant a motion for summary judgment, the district court, pursuant to FED.R.CIV.P. 56(c) must determine that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See also, Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984). Moreover, the district court must " 'resolve any doubts as to the existence of fact against the moving parties '" and " 'inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. '" Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982) (citations omitted). Bearing in mind the above-noted standards, the Court will determine if Defendant Carpellotti is entitled to summary judgment.
Defendant's statute of limitations argument contends that the action against him is barred in that Pennsylvania has a two year limitations period for bringing personal injury actions, and the instant action was not timely filed.
We note that the date of the accident was August 27, 1981, and both the order granting the Motion to Amend as well as the actual amended complaint naming Carpellotti as party defendant was filed on November 2, 1983. (The applicable statute would require the joinder of additional parties defendant prior to August 27, 1983).
We note, however, that the Motion to Amend Complaint setting forth a new party defendant was filed with the Court on June 27, 1983, thirty days prior to the expiration of the statute of limitations. The timely filing of this Motion to Amend and not the final court approval was sufficient to meet the requirement of FED.R.CIV.P. 3 that "a civil action is commenced by the filing of a complaint with the court." See Gloster v. Pa. R. Co., 214 F. Supp. 207 (W.D. Pa. 1963) (where motion to amend to add additional party defendant was filed within the time allowed for wrongful death action, statute of limitations did not bar court from granting the motion after period expired).
Within the same argument, Defendant makes reference to the mistaken identity problem; namely, that "M. Caupellotte" and not Frank J. Carpellotti was listed in the amended complaint as the new party defendant. In the answer and crossclaim of "M. Caupellotte" it was revealed that Frank J. Carpellotti t/d/b/a Carp Transit was the proper party. Moreover, Carpellotti testified 1) that Carp Transit and M. Carpellotti Trucking, owned by his mother, share the same office at the same address; 2) that he spoke to the Plaintiff by telephone within three or four days after the August 27, 1981 accident and 3) that it was his trucking firm and not his mother's which had an open agreement for hauling with Beckinger. Given these facts, it is clear that there was no prejudice to Defendant concerning the filing of the amended complaint, for he had received notice of the institution of the action and knew that but for a mistake concerning identity, the action would have been brought against him. See FED.R.CIV.P. 15(c).
Although the Pennsylvania statute of limitations pertaining to this action expired on August 27, 1983, there is no prejudice resulting if an amended complaint is filed correcting the identity of the party defendant. The amendment simply relates back to the date of the filing of the original Motion to Amend, or June 27, 1983.
Defendant next argues that absent a master-servant relationship, he cannot be held liable under the doctrine of respondeat superior for the negligence of Moore or Beckinger. He further contends that both Moore and Beckinger were independent contractors.
The hallmark of a master-servant relationship is that the master not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contractee-contractor relationship is that the person engaged in the work has exclusive control of the manner of performing it, being responsible only for the result. See Green v. Independent Oil Co., 414 Pa. 477, 201 A2d 207 (1964); Johnson v. Angretti, 364 Pa. 602, 73 A.2d 666 (1950).
That Beckinger could accept or refuse any of Carpellotti's hauling jobs under the open lease agreement, that he owned the trucks, that he paid all expenses incident to the operation of the trucks, that he was not subject to orders from Carpellotti except as to the place of loading and unloading are facts indicative of an independent contractor relationship. Although it is true that the doctrine of respondeat superior is limited to the master-servant relationship and is not applicable where the tortious acts are committed by an independent contractor, there are, as is the case herein, limited situations where public policy requires that liability remain with the employer of an independent contractor.
Section 428 of the Restatement of Law of Torts provides:
An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.