30 A.2d 724 | Pa. Super. Ct. | 1942
Argued December 11, 1942. Appeal by defendant from award of Workmen's Compensation Board.
Appeal sustained and judgment entered for defendant, opinion by SCHAEFFER, P.J. Claimant appealed. This is a Workmen's Compensation Case involving the question whether the claimant's employment was casual in character and not in the regular course of the business of the defendant.
On February 6, 1941, claimant filed a claim petition for total disability from October 9, 1940, alleging that on October 9, 1940, he suffered a fracture of two lumbar vertebrae, as a result of an accident in the course of his employment with the defendant and that he had been totally disabled from that time, as a result thereof.
On March 1, 1941, an answer was filed by the defendant, that it is chartered by the Commonwealth and its business as defined in said charter is for the purpose of public worship, religious and educational instruction and for missionary undertakings, admitting the employment of claimant by defendant, the happening of the accident and the extent of the injuries, but denying the claimant's right to compensation on the ground that his employment was casual and not in the regular course of the defendant's business.
Hearings were held before the referee on April 9, 1941, and August 20, 1941. From the testimony, the following facts appear. The defendant, without the services of a general contractor, but under the supervision of a superintendent and architect, built a church and a caretaker's house on its premises. The construction of these two buildings extended over the period from June, 1940 to January, 1941. The claimant was hired on October 8, 1940, and was injured the next day when he fell from a scaffold, 15 or 20 feet. At the time he was hired no mention was made as to how long he was to work there. No workman who worked on any part of the construction job was told *627 when he was hired how long he was to work. He did testify that he was told when he was hired that the church and the caretaker's house were to be worked together and testified that at that time there was about six week's work left on the church. Defendant's superintendent testified that he intended to keep claimant on the job for three or four weeks, although he did not tell claimant that.
On August 28, 1941, the referee filed a disallowance of compensation, deciding that claimant's employment was casual in character and not in the regular course of defendant's business.
On appeal to the board, compensation was awarded in an opinion by Commissioner Jacoby, dated March 30, 1942. The board set aside two of the referee's findings of fact and his conclusion of law, and substituted new ones.
On appeal to the Court of Common Pleas of Lancaster County, the court in an opinion by SCHAEFFER, P.J., sustained the appeal and entered judgment for the defendant on the grounds that the defendant in building its own church and caretaker's house was not engaged in the usual operation of its regular business as a non-profit and religious institution and that claimant's employment was casual. This appeal followed.
The only question involved in this case is whether or not the services of the plaintiff to the defendant church were casual in character and not in the regular course of the business of the defendant employer.
"Under section 104 of the Workmen's Compensation Act, employees are expressly excluded, whose employment is (1) casual and (2) not in the regular course of the business of the employer. If both these concurring elements are not present, the claimant is entitled to compensation:" Fedak v. Dzialdowski,
We find an analogous case in Parisi v. Freedom Oil *628 Co.,
As was pointed out in Blake v. Wilson,
This case is somewhat similar to Bordo et al. v. Grayek,
In Diviney v. J.H. France Fire Brick Co. et al.,
The judgment of the court below is reversed, and it is now ordered that the record be remitted to the court below with directions to enter judgment on the award.