Lego v. Commonwealth

445 A.2d 1324, 66 Pa. Commw. 593, 1982 Pa. Commw. LEXIS 1299
CourtCommonwealth Court of Pennsylvania
DecidedMay 26, 1982
DocketAppeal No. 510 C.D. 1981
StatusPublished
Cited by6 cases

This text of 445 A.2d 1324 (Lego v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lego v. Commonwealth, 445 A.2d 1324, 66 Pa. Commw. 593, 1982 Pa. Commw. LEXIS 1299 (Pa. Ct. App. 1982).

Opinion

Opinion by

Judge Rogers,

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 I)’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 I)’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 [596]*596the 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
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:____
[597]*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 he done and the place where it is to he performed does not in any way militate against the continuance of the relation of employe and employer between the operator and his original master:....

Mature v. Angelo, 373 Pa. at 595-598, 97 A.2d at 59-61 (emphasis in original) (citations omitted).

The crucial question then is that of whether Mat-singer passed to D’Agata, which then exercised, the right to control the manner of driver — Lego’s performance of his work. Nothing is more firmly established than that each case of this kind must be decided on its own facts. Here the referee made the following findings of fact:

5. The tractor, pulling Defendant’s D’Agata National Trucking Company’s trailer, which decedent was driving at the time of his death, was owned by Martin Matsinger but had been leased by Matsinger to D’Agata under a “30 Day or more TRIP LEASE and Inter-Change of Vehicles by Motor Carriers” agreement. D’Agata held ICC and PUC rights for this vehicle.
6. The tractor being driven by decedent bore the removable decal logo of D’Agata, and the trailer which it pulled also bore the D’Agata logo. There is no evidence that the tractor or trailer bore Matsinger’s name thereon.
7. The agreement between Matsinger, the Lessor, and D’Agata, the Lessee, contained, inter alia, the following provisions:
It is understood that the leased equipment under this agreement is in the exclusive posses[598]*598sion, control, and nse of the authorized carrier Lessee.. .. The Lessor shall surrender full control, possession and management of said equipment to the Lessee during the terms of this Lease.. . .
8. The referee finds that D’Agata had the right to instruct decedent as to the route he should take in the performance of his driving duties.
9. Upon picking up the cargo at his destination, Lego was required to telephone I)’Agata’s dispatcher for return trip instructions.
10. D’Agata had given decedent an envelope of instructions, prepared by D’Agata’s public liability insurance carrier, for decedent to follow in the event of a motor vehicle accident involving the tractor trailer he was driving.
11. Some time after Matsinger had introduced Lego to D’Agata, Lego made application to change his teamster union affiliation from Local 676 to Local 830, the local in which D ’Agata’s salaried drivers were members.
12. D’Agata cleared Lego’s physical and driving qualifications before he was permitted to haul cargo for D’Agata.
13. D’Agata did not carry Lego on its regular payroll, did not pay for fringe benefits on his behalf, and did not make the customary payroll deductions for him.

The Board did not question the sufficiency of the evidence supporting the referee’s findings, save one; but in the case of the other findings simply noted that each, standing alone, provided insufficient support for the conclusion of law that Thomas Joseph Lego was [599]*599D’Agata’s employee. We disagree that any findings were unsupported and also with the Board’s apparent conclusion that the findings taken together did not support the determination that D’Agata had the right to and in fact did control the manner in which Lego did his work.

The finding which the Board considered was not sufficiently supported by the evidence is number eight, to the effect that D’Agata had the right to instruct Lego as to the routes he should use. The referee went to great pains to support this finding by discussion of the record as follows:

D ’Agata, had given Lego a Pennsylvania Turnpike Requisition Card for his trip to Latrobe and back.

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Bluebook (online)
445 A.2d 1324, 66 Pa. Commw. 593, 1982 Pa. Commw. LEXIS 1299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lego-v-commonwealth-pacommwct-1982.