*3 PRICE, MONTEMURO, JJ. Before BROSKY MONTEMURO, Judge: action Donald Frederick brought by
This is trespass wife, Ashman, Ashman, driver, and his Starr Inez truck he sustained while on the injuries working appellees, Corporation, appellant. Sharon Steel Pennsylvania raised the defense of bar of the Appellant and, Answer, Act in its Compensation by stipula- Workmen’s counsel, held, trial with testimony tion of a bifurcated before the trial alone judge on this threshold issue taken on 20,1979 in an 17,1979, resulting September order September was not from a which found that com- appellant protected held action. Thereafter trial was negligence mon-law and a returned a liability damаges, issues of verdict jury $151,000.00. the amount in favor of appellees to this court on several grounds: Appellant appealed *4 Act ap- whether the bar of the Workmen’s Compensation to support whether there was a breach of duty plied; the was excessive. on its whether verdict We liability part; court affirm verdict of the below. the
HISTORY matter facts of instant are generally The the the factual dispute resolved dispute. jury single the resume of the facts was found as favor of and appellees follows: Brothers Trucking and Williams
Appellant [hereafter in which the long-term relationship have had а Trucking Co.] of the for appellant’s property Co. rents a Trucking portion to services to supply trucking its business and also contracts the on a basis. regular appellant and Trucking
The contract in force between Co. appellant place, at the the took for injury provided time instant with their of trucks for a leasing along operators single of jobs. depend- rate to do a The rate varied hourly variety used, the vehicle but in case it ing upon type every fuel, truck, driver, included services of insur- use ance, all other expenses.
An called the appellant Trucking the Co. employee to order the number and of trucks to daily type desig- done, nate the the number of jobs regular be hours and In the amount overtime. month which the instant occurred, accident the “Euclid” vehicles and their drivers clocked 1,332 hours of work for other appellant; types of vehicles clocked an additional 377.5 hours. teamsters,
The drivers were and had been trained operation their vehicles Trucking Co. Each man responsible and check out his vehicle report early at Co. on Trucking going assignment before his for the day. A man work, might assigned appellant might or he business, be sent other “over the hauling roаd” for other went customers. Drivers who onto appellant’s had complete for their vehicles but took direction responsibility from as to appellant’s such matters as where to employees place the truck for loading where their loads. dump
On occasion, one had to load appellee refused drums onto his when vehicle and the requested, appellant complained the Trucking Co. He was repremanded by owner Co. for not and for Trucking being cooperative, a time was taken off work assignment to on the appellant’s property. accident,
On the date drove his “Euclid” to plaintiff site of scale pit appellant’s plant pursuant instructions from the Co. morning Trucking He waited for *5 arrive, a he backed his truck into as position crane to and as leaving the crane before the vehicle operator indicated a precaution. safety work and was of the crane refused to repair
The bucket The was set on one side of the while pit bucket necessary. As he finish- worked on cables. was operator crane that cable and and told “Get bolt ing, operator appellee, will get in the bucket and we this damn show on put it road.” (N.T.29) do thаt his refusal remembering previous
Appellee, ill-received, other teamster’s work had been than anything the crane Although to follow these instructions. attempted earlier, other of the bucket operator had climbed the side unaided. there- found he was unable do so He appellee fore the side of the bucket as against a wooden placed pallet to climb the “rungs.” ladder and rudimentary proceeded and flipped shifted in the soil pebbly appellee bucket his left arm hit the ties and track, onto a railroad where damage. sustained permanent
DISCUSSION that it occupiеs position argues strongly Appellant both toward under appellee language “employer” and Act under Master Servant Compensation Workmen’s it law. that Alternatively, argues common relationship its or most was appellee trespasser order, of a lower it did “business-invitee” care owed to cannot duty appellee breach any argues liable Finally, appellant damages. wife were appellees verdicts husband and combined awarded excessive. as an under statuto- employer
Whether appellant qualified law or under common will be first ry question language the lоwer that it holding affirm the court considered. We not, on different reasoning. but *6 The Statutory Language There are three sections the applicable Workmen’s Compensation Act to be examined for an analysis of the as statutory language to employer-employee relation- ship. Section 52 defines originally liability in the instant circumstances. to
Employers’ liability employee or employee contractor permitted upon to enter premises.
An who employer permits entry upon occu- premises pied him or under control a laborer by or an assistant hired or by contraсtor, for employe the per- formance such upon premises of the part employer’s regular business entrusted to such contractor, or employe shall be to liable such laborer or assistant the same manner to same extent as to his own employe. 1915, 736, II, 203; June P.L. art. 2, 1937, 4, June P.L. § 1; 1552, 1939, 21, June P.L. 1. § § wording Were this our only guide, we would have to say that under the terms, clear of the meaning facts present would fit the criteria. statutory Appellant permitted appel- lee, who was Trucking hired Co.-contractor which did its to hauling, premises “occupied enter it and by” “under its control.” Testimony established that the driver contrоlled the vehicle entirely, but subject direction from appel- lant’s while on that employees property.
Contrary court, we opinion lower also find that appellant’s work done on grounds by appellee was clearly part “regular its business.” containing Section the definition of also has that “employe”, wording opposes “regular course of business” with “casual in character” in itself; describing employment pertinent part, section provides as follows: 22. defined “Employe”
The term as used in this is “employe”, act declared servant, with synonymous includes— All who persons perform natural serviсes for another for a consideration, valuable exclusive of whose persons employ- and not course regular ment is casual in character . . . employer, (Emphasis supplied). of the business of the Trucking services of the sense that the Common asserts two thousand hours month nearly employes, running Co. and were were far from “casual” on appellant’s property, functioning of to the smooth vitally necessary indeed Shmukler, 199 Pa. Super. in Dews v. The court company. these as follows: terms 417, 185 (1962)distinguished A.2d 607 even if only single “casual” not Employment nature incidental emergency if it is special jobs, of service and tenure project, a planned but represents which employment it and for necessary complete *7 duration. long continue of fairly part consideration as for valuable Appellee employed essential enterprise appel- term long of a well-planned therefore, with the anal- must, disagree lant’s business. We the from appellant which excluded of the court below ysis the on the grounds of statutory employer the status were not of its part hired appellee services for which it more, of without wording § business. Under regular of defendant. be an “employe” plaintiff would аppear pre- definition statutory law and However, both case later vent result. to include definition the Act was amended
In 1972 infra. 25, as set forth in “contractor” Section defined. 25. “Contractor” § two, in article section two as used The term “contractor” three, three hun three,1 and article section hundred and engaged not include contractor (b),2 and two shall dred business, supplying other than that of an independent in other assistants, persons he serves in which laborers occurs, but the injury in whose service than the employer whom a contrac principal a sub-contractor shall include principal work which such tor has sublet any part (Emphasis supplied). contractor has undertaken. 1 52 this title. Section 2 title. Section 462 of this
This wording excludes from consideration contractor any “engaged an ... independent business in which he serves other persons than the whose service employer injury occurs.” The Trucking Co. serves other companies than which appellant, places it the “independent business” and takes it out category definition of “contractor” in 52. § does, however,
The term “contractor” definition at 25, include in the contractors business of labor- “supplying § ers or Even assistants.” that a teamster assuming whose services are rented out on an falls into hourly basis category “laborer assistant”—a matter which we need decide—plaintiff here supplied conjunction with law, he drove. equipment Pennsylvania Under this is a distinction, significant see discussion infra.
Additionally, “contractor” at
25 also includes a
“subcontractor” to whom a
contractor” has
“principal
sublet
some
work
portion
contractor has
principal
under
contractor,”
taken.
Appellant
not a
but an
“principal
owner
Our
property.
courts have held that
this
distinction is significant;
an
contractor’s em
independent
is not
ploye
considered to
ordinarily
become
“employe”
the owner of the
Act
Compensation
purposes.
v.
Banks,
Brooks
&
Buckley
Pa.
Therefore, facts, under the instant we find that con trary appellant’s argument, appellant, under the relevant statutory language Act, the Workmen Compensation not the of the “employer” To appellee. recapitulate brief, he remains the of the employe Trucking Co. for the follow ing reasons: (1) Trucking supplies Co. a number of (2) customers appellant; besides it is also in the business of leasing equipment opеrators single package; (3) it leased the equipment and services of its operator directly itself, the appellant “owner,” not to a “principal contractor” subleasing the work to part be done on an owner’s property. RELATIONSHIP LAW MASTER-SERVANT
COMMON does not entire- statutory language This under disposition be examined matter. Case law should also ly dispose of a master-servant relationship, in the determination before the Work- long in common law that existed concept is specifical- Act was drafted and which men’s Compensation 22, see citation wording supra. into the incorporated ly when a “true” master determining The classic test to another is examination of servant has been loaned of control: right a servant fur- determining whether
The crucial test employe one to another becomes person nished by passes is loaned is he to whom he whether person regard only of control with right under the latter’s of performing done but also the manner the work it. omitted] [citation the right who has
A servant is the
employe
person
work,
his
performance
the manner of
controlling
he
exercises that control
actually
of whether
irrespective
omitted;
Mature
emphasis
original],
or not. [Citations
(1953).
v.
Although opinions
the serv-
actually hired
tion
as which employer
such items
his W-2
and which issued
ant,
wages,
his
paid
and which
controlling.
and are not
matters
Form, these are peripheral
312, 428 A.2d
Authority,
Pa.Super.
Co.
English v. Lehigh
cited therein.
and cases
(1981)
law definition
remains the common
The true measure
“.
whether
... he
..
relationship
of the master-servant
master,
control of
to the direction and
continues liable
whom he
lent or
to that of the
subject
party
becomes
Cab
and Standard
Express
v. Excelsior
hired.” Puhlman
accord,
Lehigh
Co.,
(1918),
English
315 discussed, haveWe the fact that the work supra, by done with his and for he appellee conjunction equipment which on entry was permitted appellant’s not “casu al,” matter is a which determined in law. Barnett v. Bow ser, 106 176 A.2d 457 It was Pa.Super. (1954). not for or “special” job, see from Dews v. “single” quotation Shmukler, supra, cited nor was it work undertaken as “volunteer,” Stewart 352 A.2d Uryc, Pa.Super. the (1975), it,” Seiavitch, “for fun of Pa. Harris v. 294, 9 375 (1939). A.2d the
Certainly appellant did exercise certain controls over the and other Co. while appellee Trucking they employes were engaged appellant’s work. Thе Co. also Trucking retained large measures of control over the men and equip- it ment leased. The between these strong interrelationship two companies particular tends to blend the lines of law, however, command. Case has the recognized problem one, as a common and does some supply guidance.
In Mature v. Court Angelo, supra, Supreme found “borrowing” a dirt-loader leased with its employer opera- tor not liable in tort an third but injured party, owner and lessor with vehicle its operator respon- In sible. that instance the loaned and vehicle had employee been engaged in regular business the borrowing employ- months; er’s site some equipment was handled only by its skilled but operator, work was at daily direction the foreman of the borrowing company.
While the loader was work actually performing on the site, the operator suddenly backed over a workman’s foot. court instance the following made analysis:
The above recital facts reveals that this obviously case of ordinary, typical of a machine with an renting skilled from operator for the one who specially purpose in the business of such machines and renting operator, out where neither the such machine and person renting opera- tor, nor his to run own are such employes, competent machine and direct the merely operator concerning to be done,—not work the manner of it. Of performing *10 the of a technician or course, engages who service anyone job of a must of particular for the specialist performance him time to time the work that indicate to from necessity him; has in engaged he wishes done and which he accordance, however, with the statement the foregoing the of such directions principle, giving legal applicable his аnd make employ not the hired servant into bring does Id., for the of the work. performance him responsible at 62-63 600-01, (Emphasis original) 97 A.2d pp. Pa. therefore, had in the assume, that the driver We may injured tort-feasor rather than an action been a instant Trucking been the Co. agent he have would party, characteristic distinguishing to be no sensible There seems focus on the master-servant that this court to impel would the on whether servant differently depending relationship The of the accident. common the or the victim perpetrator focuses on the control of the law of master and servant injured he anоther is the servant, party. not whether aon borrowing months of continuous service When several direction, his did sever not working employer’s property, of Ma under the facts the master-servant relationship case. ture, present not do so the Certain it should supra, onto brought appellant’s work that ly, appellee as the with the he equipment which he performed and property, the power by exercise of controlled, we find no unusual master’s when position it in the place which would appellant that position. Mature did not occupy property owner INVITEE TO OR OF CARE TRESPASSER DUTY events of accident thаt as argues Appellant that if he was a and even trespasser, was a itself, appellee was not to him invitee, by appellant owed duty business his harm. The crane liable to him for such make it as would that he testimony agent, denied operator, appellant’s bucket, as hooking up appellee ever order gave any the pallet over and appellee drag seeing and also denied heard injury. jury ended in the climb that begin injury obviously story both versions of the determined that true one. appellee’s They were there to decide questions credibility; was their province, certainly thеre their testimony support conclusion. This court will not disturb their determination Therefore, of the facts. we need not examine any argument as to care due a trespasser. also
Appellant argues duty the landowner to of an employes independent contractor is so stringent as that accorded business invitees in public places such as stores, and he However, this well. supports argument this is *11 not a case a “business invitee” either the category independent contractor’s or the employe category shop- per hidden, wandering into visible known unknown dangers.
TORT LIABILITY ATO CASUAL EMPLOYEE do,We however, find a suffiсient basis to sustain tort liability against appellant, although a basis not clearly articulated below.
The facts present us with an of an employe independent contractor aside standing from his vehicle for safety pur- poses, ordered to a job do outside of his expertise ordinary by agent the appellant. Appellee sprang obey. Why? Because the last time he refused to “lend a hand” he had been reprimanded and shifted to over-the-road-work for other customers for while. On this occasion he considered refusal to be and did his best impolitic, get “this damn show on the road” as ordered. at we
Here last see a “casual” employment. The in a appellee engaged “single,” “special” job, “incidental” nature, and his motive was not remuneration. He was a teamster and he vehicles for his “valuable operated consider ation.” His that he be experience was would lectured and shifted work perhaps that was physically harder and required travel. He assisted the crane for the operator simple motive of trouble—a avoiding motive as trivial as Harns, supra, who undertook boy to ride the rear of a truck “for fun it.” in nature and not undertaken trivial
Casual emplоyment, “con- does not the kind of place for consideration valuable it with brings responsibility trol” in an employer does, Act. It Compensation the Workmen’s contemplated tradi- under however, open liability leave the employer tional tort principles. appellee of the lower court that holding
Therefore the of the bar of the purposes of appellant not an employe correct, Act was and we affirm. Compensation Workmen’s results of the trial in this bifurcat- jury now to the We turn and the damages. matter, liability ed and examine DUTY OF CARE BREACH OF and the of the court opinion the record Rеviewing most favorable must, light appellees, in the below, as we favorable inference to deduced them awarding every and Seiavitch, 296, 9 A.2d 336 Pa. therefrom, supra, Harris a man who requested appellant’s agent we find that climbing a crane not accustomed overweight was untrained for and physically that he job bucket to do knew the soil agent Appellant’s to perform. ill-equipped ladder watched makeshift pebbley, was loose and There is evidence on of the bucket. laid to the side being *12 the part agent, on the of negligence the record to support should have agent find that easily for the could jury soil, the leverage of the poor circumstances known that the man, the and overweight height by of the climbed pallet bucket, training the lack and weight of the lead to an a combination that could teamster-appellee accident. for the testimony conflicting presented
The appellant has its support evidence review, jury but where the jury’s those findings, to disturb are not inclined we findings, Pa. trial did not. Standard judge when especially cited therein. Practice, 433 and cases p. OF DAMAGES
AW£RD had oc duty a breach of that determined Having to the amount of evidence as curred, the аlso heard jury suffered disability by plaintiff. con- testimony tained evidence that appellee’s injuries his left arm became time, over that an increasingly painful operation did situation, not improve his that abilities as a teamster so were impaired that he has been unable continue that He employment. has been unsuccessful in his efforts to retrain another job, type large part because of his limited education. his work Limiting to the job easier driving “Euclids” not work did either. He has suffered from the physically from pain mentally the depression that ensued from being unemployable.
There was as to loss also, his testimony earnings and we agree with the lower court that would have jury been justified in projecting appellee’s future earning capacity figure in excess of the “considerably amount awarded him.” We assume that the relative paucity the figure involved takes into account the various factors introduced into evi- dence to show by appellant appellee was not the most reliable of and not in the employes health, best indepen- dent of the We injury to arm. cannot say, however, upon review the evidence, that it was insufficient this support verdict.
Therefore, the order of cоurt below is affirmed. BROSKY, J., files opinion. concurring BROSKY, Judge, concurring:
I agree with the majority generally Sharon Steel does not Corporation statutory as qualify under employer the Workmen’s Act. 77 Compensation P.S. 52.1 I also share view that a relationship existed between Donald Ashman and that a Sharon Steel such of care duty arose resulting in liability Sharon Steel’s Ashman for damages resulting from Sharon’s if that of care negligence duty breached. I believe somewhat more on this point discussion is helpful. I wish Finally, to address the issue raised *13 Sharon Steel awarded were damages excessive. specifically employ- 1. I аm satisfied that Ashman was not a “loaned thereby qualifying ee” to Steel statutory Sharon Steel Sharon as a Schucht, employer. Pa.Super. (1978). Lane v. 393 1015 A.2d 2d is defined in Restatement A invitee business Torts, 332(3)2 as: § Defined Invitee 332.
§ to enter visitor is a who is invited person A business (3) a purpose directly indirectly on land for or remain with possessor business dealings connected with land. states in relevant (3) part: to Subsection
The Comment of business visitors. Business visitors fall e. Two classes into classes .... two who land not upon class includes those come second for a with business public, purpose to the connected
open for land, or a whiсh conducts possessor upon is their own business which con- connected with purpose otherwise, business or for which nected with any purpose, a from a the land. Thus truck driver uses possessor to to a private who enters deliver goods store provision visitor; so a workman who is a residence business used for alterations on land repairs comes to make residential purposes. certain perform Ashman was employed
Thus because Steel’s prop- Sharon Steel Sharon tasks which benefitted fact that Ashman was he invitee. The business erty, he was not a task for which while injured performing his status as I do not believe affects hired specifically all, after was commanded Ashman, business invitee. a crane which repair assist agent of Sharon Steel Ashman’s truck. loading to the was vital care a business duty that the owed It is cavil beyond is stated in Restatement owner invitee by and 343. Torts 2d 341A §§ to Invitees Activities Dangerous 341A
§ for invitees subject liability A land possessor on his carry his failure harm caused to them by physical if, but safety only care their activities with reasonable Pennsylva- adopted as law in Pennsylvania have § 2. courts Torts, Appendix 2d 332. nia. Restatement See
321 if, he will or expect should not discover they realize or will fаil to danger, protect against themselves it. Section 343 dangers possessor indicates what land is expected to know or discover. 343 Known Conditions to or Discoverable Dangerous by
§ Possessor
(a) knows or the exercise of care by reasonable would condition, discover the and should realize that it involves invitees, unreasonable risk harm to such will (b) expect they should not discover or realize or will fail to danger, protect against it, themselves (c) fails to exercise reasonable care to them protect against the danger. limited, however, is
Liability in 343A. possessor The is not liable to the invitee for which from injuries result “any or activity condition the land which is known obvious to them, ...” id. Inc., v. Cost
In McKenzie Bros. 303, 309-310, 487 Pa. A.2d our (1979), Supreme Court said in its discussion of the standard care owed an invitee:
This was also aptly pointed out Professor Prosser in by treatise. amount care demanded the standard of
reasonable conduct must proportion appar- ent risk. As the becomes the actor danger greater, to exercise required caution commensurate with it. W. Prosser, (4th Handbook of the Law of ed.1971) Torts 180. p.
Two comments to are germaine section 343 particularly (d) instant discussion. provides: Comment
d. What invitee entitled to expect. An invitee is entitled to expect possessor that the will take reasona- ble care ascertain the actual condition of premises and, it, discovered either to make it having reasonably safe or by repair give warning actual condition and the risk involved therein. Therefore an invitee is which, the alert to discover defects to be on required
not licensee, entitled to expect nothing he were a mere if defects, might he be negligent notice of known but This is of discovering. importance determining is not guilty contributory visitor whether the defect, as well as in discover failing negligence one which the the defect is posses- whether determining *15 discover, his visitor would not that sor should believe which, therefore, he must use care reasonable as to warn visitor. Torts, 343, (d) of Comment (Second) §
Restatement in (e) provides pertinent part: Comment (1965). for invitee. In required determining (e) Preparation is which an invitee entitled the extent of preparation the nature of the protection, to made for his be expect it is are of great for which used and the purposes land importance. Torts, 343, (e) Comment (Second)
Restatement (1965). a owed Ashman reasonable Sharon Steel
Accordingly, which, quite him from dangers to protect standard care loading procedure associated with were naturally I would be unaware. which Ashman trucks, and about foreseeable that Ashman reasonably it was would hold that related to in employee process would aid Sharon Steel Thus, to do so. Sharon if he was asked his truck loading assure care Ashman to of reasonable duty owed Steel repair. need of by equipment injured that he and Sharon was breached Steel duty Clearly, negligent. to be found properly award- damages is that final contention Sharon Steel’s Glover, v. Kravinsky excessivе. In ed the Ashmans 1349, we said: 25-26, (1979), 396 A.2d 1358 8, 263 Pa.Super. the verdict is contention appellant’s Turning Co., West Penn Power v. note that Skoda excessive we 822, our 338, (1963), Supreme A.2d 830 411 191 323, Pa. Court stated:
323
courts are
reluctant
“Appellate
properly
interfere
cases,
with
verdicts
which
jury
personal injury
verdicts
are
supported
opinion and
the trial
approval
judge
and the
court
en banc.
Roadman
Bellone,
[379]
479
483,
(1954).
Pa.
“(1) the whether (2) severity injury, plaintiff’s injury by objective manifested evidence physical instead merely subjective plaintiff, testimony (3) *16 whether will affect the injury plaintiff permanently, (4) whether can with continue his employ plaintiff ment, (5) the plaintiff’s size of out-of-pocket expenses, and (6) the amount plaintiff original demanded com plaint.” (footnote omitted.) v. Kemр See Philadelphia Co., 379, 239 361 Transportation Pa.Super. A.2d 362 (1976). Mere between amount verdict and disparity itself sufficient out-of-pocket expenses grounds In disturb a verdict. Carminati v. Philadelphia Trans portation 500, 405 Pa. A.2d (1962), 440 our Company, $79,500 Supreme upheld Court although award medical were less than expenses we have Similarly, $200. $25,000 sustained a medical although verdict expenses Mullen, totalled Simmons v. only supra, $549.60. Pa.Super. [199] 215, 331 A.2d [892] at 901. standard case, the above to the instant we find Applying that, Mr. suffered a permanent Ashman has to his disability arm arm. ability left his rotate his This affecting malady will affect his continue his as a truck employment аbility vehicle, will not he can to drive a he driver. While continue he was trained. This be able to the kind for which operate Furthermore, Mr. will result in substantial lost earnings. injury with the Ashman continues to suffer associated pain that all likelihood pain and evidence was submitted his Ashman’s award supports will also Ms. persist. Testimony only loss Mr. has suffered for of consortium. While Ashman I hold would injuries, nominal his out-of-pocket expenses his Ms. Ashman’s loss loss of earnings, pain I the award. together justify consortium when considered excessive as to shock sense my do not find the award so circumstances, these justice. find, I cannot under discretion. trial court abused its clearly to affirm the order majority I concur in opinion of the court below.