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FREENY v. WM. PENN BROADCASTING CO. (11/16/55)

November 16, 1955

FREENY, APPELLANT,
v.
WM. PENN BROADCASTING CO.



Appeal, No. 159, Oct. T., 1955, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1952, Nos. 6516 and 6631, in case of Irvin Freeny v. Wm. Penn Broadcasting Co., and C. N. Rice and Henry R. Buxbaum. Judgment affirmed.

COUNSEL

J. Ominsky, with him Maxwell L. Ominsky and Martin Feldman, for appellant.

Robert B. Wolf, with him Leon Solis-Cohen, Jr., and Wolf, Block, Schorr & Solis-Cohen, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Gunther

[ 180 Pa. Super. Page 435]

OPINION BY GUNTHER, J.

The lower court affirmed the decision of the board to the effect that appellee was neither employer nor statutory employer of appellant.

Irvin Freeny, appellant in this case, was injured while helping to remove two radio transmitters from the studios of Station WPEN. He filed his petition against three alleged employers, Rice, Buxbaum, and WPEN. Henry R. Buxbaum, doing business as an individual, contracted with Mr. Burtis, WPEN's chief engineer, to remove the equipment, and also hired a truck and several helpers from C. N. Rice. Appellant, one of Rice's helpers, alleged that C. N. Rice and Henry R. Buxbaum were his employers, and that WPEN was a statutory employer.

The referee, after hearing, dismissed the claim against Rice and awarded compensation against Buxbaum and WPEN. The board sustained the award against Buxbaum, but reversed as to WPEN.

The record substantiates the findings of fact of the compensation authorities that Buxbaum was an independent contractor. The engineer, Burtis, consulted with Buxbaum as to the result to be achieved, but not as to the methods of accomplishing the work. The testimony is clearly sufficient to warrant the finding

[ 180 Pa. Super. Page 436]

    that only Buxbaum exercised and had the right to exercise control. Mature v. Angelo, 373 Pa. 593, 85 A.2d 59. Hanst v. Swartzfager, 170 Pa. Superior Ct. 219, 97 A.2d 639. The burden of proving that he was the employe of the person who had the right of controlling the manner of work is upon the claimant. Where the decision of the Board is against the party having the burden of proof, appellate review is limited to whether the findings of fact are consistent with each other and with the conclusion of law. Silvers v. Philco Corp., 175 Pa. Superior Ct. 246, 103 A.2d 286.

Claimant also alleges that appellee may be considered a statutory employer. The doctrine of statutory employer is encompassed in Section 302(b) of the ...


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