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IN THE COMMONWEALTH COURT OF PENNSYLVANIA William Feister, Petitioner v. Workers' Compensation Appeal Board (Mellinger Transportation, Inc. and Donald Mellinger Trucking), Respondents : : : : : : : : :

No. 850 C.D. 2010 Submitted: December 10, 2010

BEFORE:

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: April 27, 2011

William Feister (Claimant) petitions for review of the April 19, 2010, order of the Workers' Compensation Appeal Board (Board), which affirmed the determination of a workers' compensation judge (WCJ) that Claimant was an employee of Donald Mellinger Trucking (DMT). Claimant filed a claim petition alleging that, on October 20, 2006, he was injured in a motor vehicle accident while working as a truck driver for Mellinger Transportation, Inc. (MTI). Claimant averred that he sustained a broken vertebra, loss of part of a leg, contusions, trauma, and scarring as a result of the accident. Thereafter, MTI filed a joinder petition, alleging that Claimant was an employee or independent contractor for DMT, which is a separate business entity from MTI. MTI had a workers' compensation policy with Norguard Insurance, which covered its

clerical office employees, and not truck drivers such as Claimant.

Both petitions

were assigned to the WCJ, who bifurcated the case in order to first decide the threshold issue of Claimant's employment status. On June 28, 2007, the WCJ conducted a hearing and received the testimony of Claimant and Donald Mellinger. Claimant testified the he drove a truck for DMT and that the door of the truck indicated that it was owned by DMT and operated by Donald Mellinger. (Reproduced Record (R.R.) at 39a) Claimant stated that he did not lease the truck from either DMT or MTI, and that he did not pay for maintenance, fuel, or tolls. (R.R. at 40a.) He also indicated that DMT established his rate of payment. (R.R. at 45a.) Claimant testified that either Don Mellinger or the dispatcher arranged for his pickups and deliveries, (R.R. at 48a); however, he was not certain whether DMT or MTI directed him where to go for his deliveries. (R.R. at 51a.) He also did not know whether the dispatchers contacted him on behalf of DMT or MTI. (R.R. at 57a-58a, 75a.) Mellinger testified that he is the sole shareholder of MTI and the sole proprietor of DMT. (R.R. at 80a.) Mellinger stated generally that the role of DMT is to haul freight and the role of MTI is to schedule pickups and deliveries, (R.R. at 82a), and his testimony in this regard was nebulous: Q. Mr. Mellinger, what does [MTI] do? What business are they engaged in? A. They lease trucks to haul freight. Q. And who do they lease trucks to? A. [DMT], they lease from [DMT].

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Q. And why does [MTI] lease the trucks to [DMT]? A. They have the authority. .... Q. Now, just so that the Judge understands this, Mr. Mellinger, what does [DMT] do? A. Hauls freight. .... Q. Mr. Mellinger, what does [MTI] do? A. [MTI] holds the authority to haul freight. Q. Does it, in fact, haul freight. A. No, Sir. Q. It doesn't haul freight? A. [MTI] has the authority to haul freight. They have no trucks to haul freight. Q. But they have leases for trucks to haul freight? A. Yes, they do. (R.R. at 81a-82a, 104a.) Furthermore, Mellinger's testimony regarding which entity performs dispatching functions was contradictory, as illustrated by the following exchange between the WCJ and Mellinger: [WCJ] Mr. Mellinger, you said that no direction is given after dispatch? A. [MTI] does not dispatch, no sir. 3

.... [WCJ] Okay. If I understood your testimony correctly, [MTI] is the entity that schedules the pick ups and deliveries; correct? A. No, Sir. [WCJ] Okay. I misunderstood you then. Who schedules the pick ups and deliveries? A. [DMT]. [WCJ] Okay. So when we heard testimony regarding the dispatcher, that would be somebody from DMT? A. The dispatcher is paid by [MTI]. So, therefore, you are right. He would be dispatching from [MTI], yes. [WCJ] Okay. So if I would paint this picture, tell me if I'm right or not. DMT would determine a pick up for [Claimant]. They would tell [MTI] where this pick up is to be done and the dispatcher from [MTI] would notify [Claimant]? A. Yes, Sir.

(R.R. at 90a-91a.) (Emphasis added.) In addition, Mellinger testified, inter alia, that DMT owned the trucks, paid the drivers, and advanced money for expenses such as tolls, maintenance, and fuel. Mellinger further indicated that, in the event Claimant would find a load himself, MTI had to approve the load. (R.R. at 92a.) The WCJ found both witnesses credible. Based on their testimony, the WCJ made the following relevant findings of fact:

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2. ...[DMT] established the rate of payment to Claimant for each load he delivered. .... 4. Claimant drove trucks owned and operated by [DMT]. 5. [DMT] leased its trucks to [MTI]. 6. Load[s] to be picked up or delivered by Claimant are arranged between customers and [DMT]. 7. [DMT] advised dispatchers employed by [MTI] of the particulars of the loads for Claimant to pickup or deliver. 8. Dispatchers from [MTI] advised Claimant of the locations of the loads. 9. Claimant had the option to refuse any load offered by [MTI]. 10. Claimant had full discretion on the route he drove to complete the pickup or delivery of each load he accepted.

(WCJ's Decision, 12/20/2007, Findings of Fact Nos. 2, 4-10.) The WCJ concluded that, because Claimant was free to refuse loads and select the route of travel, Claimant failed to show that he was employed by either MTI or DMT. Claimant appealed to the Board, which reversed the WCJ and remanded the case for further proceedings. The Board reasoned that Claimant's ability to decline work and select his route was insufficient to establish that an employeremployee relationship did not exist. Moreover, the Board observed the following: Here Claimant was paid by [DMT] and operated a truck owned by [DMT]. His pick ups and deliveries were arranged for and scheduled by a dispatcher employed by [MTI]. Moreover, he was required to seek approval from [MTI] before seeking out loads on his own. These facts,

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which were not disputed, establish that Claimant was an employee, and not an independent contractor.

Feister v. Mellinger Transportation, Inc., WCAB No. A08-0011, filed 11/10/2008, pg. 6.) The Board also observed that it was possible that Claimant was jointly employed by both DMT and MTI, citing 3D Trucking Company, Inc. v. Workers' Compensation Appeal Board (Fine and Anthony Holdings International), 921 A.2d 1281 (Pa. Cmwlth. 2007). Following remand, the WCJ circulated a decision on July 21, 2009, in which he determined that Claimant was an employee of DMT. The WCJ incorporated by reference all of the findings of fact set forth in his December 20, 2007, decision and made the following conclusion of law: 2. Claimant is an employee of ... [DMT]. Claimant's pay came from [DMT], which also owned the truck Claimant operated. [MTI] is third-party administrator of the loads and nothing more. If [DMT] did not supply the truck, Claimant had no means by which to move loads arranged by anyone including [MTI].

(WCJ's Decision, 7/21/2009, Conclusion of Law No. 2.) Claimant appealed to the Board, which affirmed. On appeal to this Court,1 Claimant contends that the WCJ's finding that he was employed by DMT is unsupported by substantial evidence. He argues that the

Our scope of review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated. DeGraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007). MTI previously moved to quash or dismiss Claimant's petition for review on the grounds that the Board's order is not final and appealable and that Claimant is not an aggrieved party. We

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evidence shows that he was actually employed by MTI, which controlled his work and the manner in which it was performed. Claimant maintains that with respect to the employment relationship, the only function that DMT performed was payroll. At the outset, we observe that the question of whether Claimant is an independent contractor is not before us.2 The only issue in this appeal is Claimant's contention that either MTI, or that MTI and DMT jointly, were his employer. Turning to the merits, courts typically consider the following factors to determine whether an employer/employee relationship exists: Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one is engaged in a distinct occupation or business; which party supplied the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer, and also the right to terminate the employment at any time.

Universal Am-Can, Ltd. v. Workers' Compensation Appeal Board (Clarence O. Minteer), 563 Pa. 480, 489-90, 762 A.2d 328, 333 (2000). There is no fixed test to determine the existence of an employer/employee relationship, but the most important factor is evidence of actual control or the right to control the work to be done and the manner of its performance. Reflex Systems, Inc. v. Workers' Compensation Appeal Board (Ferrucci), 784 A.2d 217 (Pa. Cmwlth. 2001). A

heard argument on the matter on July 28, 2010. On August 2, 2010, we denied MTI's motion, concluding Claimant's appeal is properly before us. DMT filed a cross-appeal in this matter; however, DMT withdrew that appeal on August 20, 2010, and we subsequently entered an order precluding DMT from filing a respondent's brief. Furthermore, MTI did not cross-appeal, but argues, inter alia, that the WCJ correctly found that it was not Claimant's employer.
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determination regarding the existence of an employer/employee relationship is a question of law subject to this Court's review, which is determined on the basis of the WCJ's findings of fact. Moberg v. Workers' Compensation Appeal Board (Twining Village), 995 A.2d 385 (Pa. Cmwlth. 2010); Martin Trucking Company v. Workmen's Compensation Appeal Board, 373 A.2d 1168 (Pa. Cmwlth. 1977). In this case, Claimant did not challenge any of the WCJ's enumerated findings of fact in his 2009 appeal to the Board. (Supplemental Reproduced Record at 150a.) Kelly v. Workers' Compensation Appeal Board (DePalma Roofing), 669 A.2d 1023 (Pa. Cmwlth. 1995) (only issues raised before the Board are preserved for appellate review). Nor does Claimant contend in this appeal that any specific finding of fact is erroneous. Nevertheless, even though the WCJ's findings are binding in this appeal, we conclude that they are inadequate to determine whether MTI, DMT, or both entities had an employer/employee relationship with Claimant. In this case, the WCJ found as fact in his 2007 decision that (1) MTI leased trucks from DMT, (2) DMT informed MTI's dispatchers of the particulars of the loads to be picked-up or delivered, and (3) MTI's dispatchers then advised Claimant of the locations of the loads. (WCJ's Decision, 12/20/2007, Finding of Fact Nos. 5, 7, 8.) Moreover, in his 2009 decision the WCJ recognized in his findings the Board's observation that Claimant's pick ups and deliveries were "arranged for and scheduled by a dispatcher employed by [MTI], which also had to approve any loads that Claimant may take on his own." (WCJ's Decision, 7/21/2009, Finding of Fact No. 6.) (Emphasis added.) In contrast to the Board's observation, the WCJ found that DMT not only paid Claimant and owned the trucks, but also arranged for the loads that Claimant hauled and advised MTI's dispatchers of the particular loads assigned to

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Claimant. (WCJ's Findings of Fact, 12/20/2007, Nos. 2, 4, 6, 7.) There is no finding of fact on the payment of expenses, but the record indicates that DMT advanced Claimant's driving expenses. (R.R. at 40a, 87a.) The WCJ's findings and the witnesses' credible testimony here suggest that both entities exercised some degree and manner of control over Claimant. As noted by the WCJ, MTI performed administrative functions; however, it also had the right to approve Claimant's ability to take loads on his own, which is evidence that MTI exercised control over Claimant's work. See Sarver Towing (Wausau

Insurance, Co.) v. Workers' Compensation Appeal Board (Bowser), 736 A.2d 61 (Pa. Cmwlth. 1999) (concluding that the employer did exercise substantial control over claimant, a tow truck driver, because the claimant was not allowed to use a tow truck to work for other parties). On the other hand, the findings that DMT paid Claimant and was the owner of the truck are relevant factors in determining whether an employer/employee relationship exists. 3D Trucking (stating that an employer's payment of wages is a significant factor to determine the existence of an employer/employee relationship); Sarver Towing (holding that employer's ownership of a tow truck was important in determining whether an employer/employee relationship existed). The findings also indicate that both MTI and DMT played a role in the process of arranging for loads and dispatching Claimant. The WCJ is required in this type of case to make findings of fact on the degree and manner of control DMT and MTI exercised over Claimant. Universal Trucking, Inc. v. Workmen's Compensation Appeal Board (Hassell), 535 A.2d 722 (Pa. Cmwlth. 1988). After review, we conclude that the WCJ's findings of fact are sparse, inconclusive, and do not define the degree and manner of control exercised by each entity. Furthermore, the WCJ did not make any findings and conclusions of law

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on whether MTI and DMT functioned as joint employers of Claimant, which, as observed by the Board, is a relevant consideration here. See 3D Trucking (holding that the evidence established that 3D and other related entities were claimant's joint employers, where the claimant worked for the related entities as a truck driver, the related entities leased their trucks to 3D, and substantial evidence showed the existence of an employment relationship with 3D). Accordingly, we vacate the Board's order and remand this case to the Board, for further remand to the WCJ, to issue a new decision with sufficient findings of fact and conclusions of law consistent with this opinion.

________________________________ PATRICIA A. McCULLOUGH, Judge

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA William Feister, Petitioner v. Workers' Compensation Appeal Board (Mellinger Transportation, Inc. and Donald Mellinger Trucking), Respondents : : : : : : : : :

No. 850 C.D. 2010

ORDER AND NOW, this 27th day of April, 2011, the April 19, 2010, order of the Workers' Compensation Appeal Board is hereby vacated and this case is remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

________________________________ PATRICIA A. McCULLOUGH, Judge



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