16 Pa. Commw. 420 | Pa. Commw. Ct. | 1975
Opinion by
This is an appeal by the Industrial Valley Bank & Trust Company (Bank) from an order of the Workmen’s Compensation Appeal Board (Board) dated May 30, 1974, which affirmed a referee’s award of compensation to Nathaniel Anderson (Anderson).
As we explained in our prior opinion, Anderson made his living collecting junk in a pushcart and selling it to a junkyard. On the recommendation of the owner of the junkyard, he and another man were hired
The Bank contends that Anderson is not entitled to compensation because he was not an “employe” as defined in Section 104 of the Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §22 (Supp. 1974-1975). Section 104 excludes from the Act’s coverage employes whose work is “casual in character and not in the regular course of the business of the employer. ...” Anderson’s personal representative concedes that Anderson was a “casual employe,” and the only issue presented by this appeal is whether his employment, even though “casual,” was “in the regular course of the business” of the Bank. There is no material disagreement as to the facts, and the question is one of law. Barnett v. Bowser, 176 Pa. Superior Ct. 17, 106 A. 2d 457 (1954). Our power to review for errors of law in a cash such as this is clear. David v. Bellevue Locust Garage, 12 Pa. Commonwealth Ct. 602, 604, 317 A. 2d 341, 342 (1974).
The Board concluded that Anderson was engaged in the Bank’s regular course of business, and reasoned that this conclusion followed from the fact that record keeping is necessary to a bank’s operations. The Board reasoned that Anderson was involved in physically moving bank records when he was injured; hence, his accident
In Ciccocioppo v. Rocco, 172 Pa. Superior Ct. 315, 94 A. 2d 77 (1953), the Superior Court characterized the claimant’s work as “incidental.” The claimant worked for six days painting and repairing a tavern, after being engaged to do this by the owner-operator. The Court rejected the argument that the owner was in the business of “operating” real estate, simply because the holding and maintenance of some real estate was essential to the operation of his tavern. The Court noted that the regular course of business of the employer was “the serving of food and drink to his patrons,” and nothing more. See also Miller v. Farmer’s National Bank, 152 Pa. Superior Ct. 405, 33 A. 2d 646 (1943) and Magalski v. Olyphant Borough, 150 Pa. Superior Ct. 216, 27 A. 2d 280 (1942).
The principal which must control our decision was aptly summarized by the Supreme Court in Callihan v. Montgomery, 272 Pa. 56, 72, 115 A. 889, 894-95 (1922), where the Court said: “The casual employment of one, for the performance of an odd job, may occur in conducting a business and still not be within its regular course. For instance, emergency repair work on a machine used in the operation of a business can always he
Our reading of the record and adjudications in this case leads us to conclude that the Board erroneously applied section 104 in allowing benefits to Anderson. The occasional moving of filing cabinets, while certainly related to the conduct of a banking business, is simply too remote from the actual, day-to-day operations of a bank to enable Anderson to avoid the exclusionary provision of the Act. We therefore
Order
And Now, this 19th day of February, 1975, it is hereby ordered that the order of the Workmen’s Compensation Appeal Board, dated May 30,1974, awarding workmen’s compensation benefits to Nathaniel Anderson is vacated;
Anderson is now deceased, and his death apparently had no connection with the injury involved in the instant case.
Industrial Valley Bank & Trust Co. v. Workmen’s Compensation Appeal Board, 9 Pa. Commonwealth Ct. 554, 308 A. 2d 909 (1973).