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BARNETT ET AL. v. BOWSER (07/13/54)

July 13, 1954

BARNETT ET AL.
v.
BOWSER



COUNSEL

Harris J. Latta, Jr., Philadelphia, Paul E. Beaver, Altoona, J. William McIntyre, Bedford, for appellant.

Don C. Reiley, D. Cress Reiley, Reiley & Reiley, Bedford, for appellees.

Before Ross, Acting P. J., and Gunther, Wright, Woodside and Errvin, Jj.

Author: Ross

[ 176 Pa. Super. Page 18]

ROSS, Judge.

In this workmen's compensation case a claim petition was filed by the widow of Meade J. Barnett, who was fatally injured while in the employ of the defendant, W. C. Bowser. The referee disallowed compensation and the Board, while affirming the referee's findings of fact, set aside his conclusions of law and made an award. The defendant's exceptions were overruled by the court below and judgment was entered against him. From that judgment, the defendant has appealed to this Court.

Section 104 of the Workmen's Compensation Act, 77 P.S. ยง 22, provides in part as follow: 'The term 'employe,' as used in this act is declared to be synonymous with servant, and includes -- All natural persons, who perform services for another for a valuable consideration, exclusive of persons whose employment is casual

[ 176 Pa. Super. Page 19]

    as casual if the need for the work recurs with a fair degree of frequency and regularity, and, it being thus anticipated, there is an understanding that the employee it to perform such work as the necessity for it may from time to time arise. Even if there be but a single or special job involved, this does not conclusively stamp the employment as casual. If the work is not of an emergency or incidental nature but represents a planned project, and the tenure of the service necessary to complete it and for which the employment is to continue is of fairly long duration, the employment is not casual * * *.'

In Deviney v. J. H. France Fire Brick Co., 339 Pa. 553, 16 A.2d 45, the employer company purchased an old brick plant and in order to put it into shape to manufacture fire brick engaged upon a large-scale program of reconstruction and repairs, together with the building of new sheds and kilns. Claimant, a carpenter, was one of 25 men hired to do the work. The entire project required about six months' work, and claimant would have been employed for that length of time had he not suffered a serious accident about six days after he started to work. The Supreme Court held claimant's employment not casual, stating, inter alia, 339 Pa. at pages 555-556, 16 A.2d at page 46: 'Here the enterprise in connection with which claimant was employed was large in scope. It was not of an emergency or incidental nature but part of a planned program.' In Parisi v. Freedom Oil Co., 150 Pa. Super. 260, at page 264, 27 A.2d 255, at page 256 we stated: 'The project which defendant undertook, and in which claimant was engaged as an employee, was not merely an incidental job or an emergency repair, but it was a premeditated, planned and extensive undertaking related to the conduct of its business. As the facts disclose, land was purchased, and the buildings thereon were to be demolished, in whole or in part, and a garage

[ 176 Pa. Super. Page 21]

    for defendant's trucks erected. More than two months were required to complete the work. Even if the demolition and construction work, related as it was to defendant's business, was not in its regular course or a part of the normal conduct of such business, it cannot be said that the employment of claimant and the others engaged in such work was casual. It did not come about by chance or fortuitously.'

In this case, the defendant purchased an 'old station' from the Huntingdon and Broad Top Railroad. With the help of one Patterson he dismantled the building and moved the materials from their then-location to property owned by defendant at Stonerstown. It was his intention to use the lumber from the old station 'to build a new building'. By ...


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