Appeal, No. 175, April T., 1954, by claimant, from decision of Unemployment Compensation Board of Review dated March 22, 1954, appeal No. B-4-L-677, decision No. B-36201, in re claim of Herbert Joseph Flaherty. Order reversed.
E. P. Curran, for appellant.
William L. Hammond, Special Deputy Attorney General, with him Frank F. Truscott, Attorney General, for appellee.
Before Rhodes, P.j., Hirt, Ross, Wright, Woodside and Ervin, JJ. (gunther, J., absent).
[ 177 Pa. Super. Page 573]
Thomas Roefaro owned and operated a supermarket on Millvale Avenue in Pittsburgh. To meet the needs of his expanding business he employed an architect to draw plans for enlarging the building in which his market was housed. The estimated cost of the new structure was about $34,000. Roefaro engaged claimant to supervise the work. Under his contract of employment claimant had authority to hire the workmen and to order the necessary materials. His responsibility also was to see to it that the work was performed according to the plan and that the building progressed satisfactorily. For this service claimant was to receive $100 a week. He performed the duties of his employment from October 10, 1952 until February 17, 1953 when Roefaro halted the work of construction and claimant's services were discontinued. During the period he was paid a total of $1,300.
In disposing of claimant's application for unemployment compensation benefits, the Board of Review found that claimant was not an independent contractor in relation to the work for the reason that his "services were performed under the direction and control of Thomas Roefaro." The evidence clearly supports the finding and accordingly the Board properly concluded that claimant was not barred under § 4(1)
[ 177 Pa. Super. Page 574]
(2) (B) of the Unemployment Compensation Law as amended by the Act of May 23, 1949, P.L. 1738, 43 PS § 753. Cf. Healey v. Carey, Baxter & Kennedy, Inc., 144 Pa. Superior Ct. 500, 19 A.2d 852. The Board however fell into error in concluding that claimant was not entitled to benefits on a finding that his employment in Roefaro's service was casual in character.
Section 4(1) (4) of the Act, as amended, provides: "The word 'employment' shall not include -... (2) Casual labor not in course of employer's trade or business..." The Act does not define "casual labor" and the provision of the Act excluding casual employment has not been before us for construction. Section 104 of our Workmen's Compensation Act of June 2, 1915, P.L. 736, 77 PS § 22 in classifying employes entitled to its benefits excludes "persons whose employment is casual in character and not in the regular course of the business of the employer." Although the Workmen's Compensation Act, in the phrase which we have italicized, is more restrictive than the section of the Unemployment Compensation Law with which we are here concerned, yet the intent of the legislature in the corresponding sections of both Acts was the same and the provisions must be similarly construed.
In Cochrane v. Wm. Penn Hotel, 339 Pa. 549, 16 A.2d 43, an appeal from our decision in 140 Pa. Superior Ct. 323, 13 A.2d 875, the Supreme Court said: "As to what constitutes an employment casual in character, it is obvious that the term 'casual' is not capable of scientific definition. Involved in it are the ideas of fortuitous happening and irregularity of occurrence; it denotes what is occasional, incidental, temporary, haphazard, unplaned. Applying it as practically as possible to the subject of ...