49 Pa. Commw. 98 | Pa. Commw. Ct. | 1980
Opinion by
John A. Morley has appealed from an order of the Workmen’s Compensation Appeal Board which reversed a referee’s decision awarding him benefits for total'disability.
On a day in July 1973, Morley, then 72 years of age and a resident of St. Petersburg, Florida, but who had once been Mayor of Glenfield Borough, Allegheny County, made a social call at the home of his old friend Paul Cernansky, the Glenfield Borough Police Chief. During the visit a telephone message was received informing Chief Cernansky that an automobile accident had occurred a short distance from the Cernansky home. Morley testified that Chief Cernansky said to him “Let’s go”; Chief Cernansky
The referee found as facts that Morley was “commandeered” by Chief Cernansky to assist at the scene of the accident and that Morley was serving as an auxiliary policeman of Grlenfield Borough at the time he was injured. The referee’s conclusion of law was that Morley was entitled to benefits because he sustained injuries while serving in the capacity of auxiliary policeman for the Borough of Grlenfield. We agree with the Appeal Board which in reversing the referee concluded that Morley was not an auxiliary policeman of Grlenfield Borough.
Section 104 of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §22b, which the referee must have had in mind in his conclusion, provides that auxiliary police of municipalities, including boroughs, shall be entitled to compensation for injuries received while engaged as policemen. Unfortunately for the claim
Morley additionally says that he was engaged by Chief Cernansky as an employee of the Borough to assist at the location of the accident. The general rule is that the relation of employer and employee cannot be imposed on a person without his consent, expressed or implied. Morley’s argument is that the circumstances on the day of his injury were such as to bring him within an exception to the general rule which provides that a servant may engage an assistant in the case of an emergency where he? the servant, is unable to perform the employer’s work alone. He says that the referee’s finding that he, Morley, was “commandeered” by Chief Cernansky imports that he was engaged as Chief Cernansky’s assistant and a borough employee. The existence of an emergency is essential to the operation of the exception. Byrne v. Pittsburgh Brewing Co., 259 Pa. 357, 103 A. 53 (1918). Manifestly there was here no emergency — that is, no “ ‘ sudden or unexpected event which creates a temporarily dangerous condition usually necessitating immediate or quick action.’ ”
Order affirmed.
Order
And Now, this 28th day of January, 1980, the order of The Pennsylvania Workmen’s Compensation Appeal Board dated August 10, 1978 is affirmed.