Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 5750 August Term, 1982.
Walter S. Jenkins, Philadelphia, for appellant.
Lawrence A. Segal, Philadelphia, for Romanski, appellee.
Charles W. Craven, Philadelphia, for Yellow Cab, appellee.
Wieand, Olszewski and Beck, JJ.
[ 356 Pa. Super. Page 245]
The principal issue in this appeal is whether Prudential Property and Casualty Insurance Company (Prudential) or Yellow Cab Company of Philadelphia (Yellow Cab) became liable to Michael Romanski for no-fault insurance benefits*fn1 following an accident which occurred while Romanski was driving a taxi. The trial court entered summary judgment against Prudential for no-fault benefits and also for counsel fees. We affirm the judgment for no-fault benefits but reverse the award of counsel fees.
[ 356 Pa. Super. Page 246]
On March 31, 1982, Romanski was injured when the taxicab which he was operating was involved in an accident. Romanski did not own the cab but was operating it pursuant to written lease agreement with Yellow Cab. At the time of the accident, Romanski owned several personal vehicles which were insured by Prudential. Following the accident, Romanski applied to both Prudential and Yellow Cab for no-fault benefits, including reimbursement for medical expenses and lost wages. Yellow Cab denied the claim on the basis that Romanski had been an independent contractor, not an employee, and that Yellow Cab had no duty to provide him with no-fault coverage. Prudential also denied Romanski's claim, contending that Romanski was an employee of Yellow Cab, which was liable for no-fault benefits. Prudential also alleged that the policy which it had issued to Romanski excluded coverage for the taxi which he had been driving at the time of the accident. Romanski commenced an action against both Yellow Cab and Prudential, seeking an award of both no-fault benefits and counsel fees. Answers were filed, compulsory arbitration was held, and an award was made in favor of Romanski and against Prudential. Prudential filed an appeal in the Court of Common Pleas. Thereafter, Romanski filed a motion for summary judgment, which, on August 8, 1984, was granted "as to the liability of Prudential to provide no-fault benefits only." Other issues were to proceed to trial. Prudential filed an appeal in this Court, but the appeal was quashed as interlocutory because the amount of Romanski's wage loss had not been determined, the issue of Romanski's entitlement to costs and attorneys fees had not been decided, and a final judgment had not been entered. Upon remand, the amounts of the several claims were stipulated, and the trial court entered judgment in favor of Romanski and against Prudential "in the amount of $6,181.71 for medical expenses, $3,250.00 for work loss, $4,173.53 for interest; and $3,571.25 for attorneys' fees and costs for a total of $17,176.49." Prudential filed the present appeal.
[ 356 Pa. Super. Page 247]
"It is well established that we can sustain a summary judgment only 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' Pa.R.C.P. 1035(b) . . . ."
Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa. Super. 341, 350, 361 A.2d 676, 680 (1976), quoting Toth v. City of Philadelphia, 213 Pa. Super. 282, 285, 247 A.2d 629, 631 (1968). In the instant case, the parties are not in disagreement about the material facts. The dispute, rather, is a legal one.
The first issue to be decided is whether Romanski was an employee of Yellow Cab or an independent contractor. This is a question of law. Cohen v. Government Employees Insurance Company, 289 Pa. Super. 319, 322, ...