dissenting. The decision reached by the majority affirms a summary judgment granted appellee at the trial level. I am dissenting from this decision because based on the facts and case law in this area I am firmly convinced that reasonable minds could differ on the outcome of this case. Therefore, it was improper for the trial court to enter summary judgment for the appellee.
Kelley v. Southern Pacific Co. (1974), 419 U.S. 318, forms the basis of the court’s opinion. Upon closer examination it becomes evident that the case law which supported Kelley1 and those cases which have since interpreted Kelley2 point to a genuine question of fact as to the subservant relationship asserted by appellant. If appellant were afforded a trial these issues could be *109presented to the trier of fact and adequately addressed and answered by such trier.
The majority narrowly construes the test for a subservant, set forth in Kelley and the Restatement of the Law, Agency 2d, when they find that appellant was not subject to the control of both PTL and appellee. In this case, Conrail had the right to control the work activity of appellant in the loading and unloading of the railroad cars. It exercised this control whenever PTL supervisors were not present at the lowest levels of the decision making process and at many administrative levels even when PTL supervisors were present. This control is the key in the determination of whether appellant was a subservant of Conrail and it presents a factual question on which reasonable minds could differ. This makes the grant of summary judgmént in a case such as this inappropriate.
As to the portion of the court’s decision which discusses the inability of appellant to seek recovery from both the state insurance fund and the FELA under the two theories of employment, such an analysis is incorrect if appellant is indeed a servant and subservant of PTL and Conrail, respectively. Under such a finding appellant should be able to recover from FELA even though he received state workers’ compensation benefits. The court even recognizes in its opinion that a majority of cases have allowed for just such compensation when an employee is engaged in interstate commerce.
There is present in this case a question as to the master-subservant relationship between appellee and appellant. This question is not the proper basis for a grant of summary judgment but should be afforded a complete trial before the trier of fact. I would, therefore, reverse the court of appeals and remand the case to the trial court.
J. P. Celebrezze, J., concurs in the foregoing dissenting opinion.See, specifically, Williams v. Pennsylvania R.R. Co. (C.A. 2, 1963), 313 F. 2d 203; Schroeder v. Pennsylvania R.R. Co. (C.A. 7, 1968), 397 F. 2d 452.
See, specifically, Pellicioni v. Schuyler Packing Co. (1976), 140 N.J. Super. 190, 356 A. 2d 4.