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POTASH v. BONACCURSO (11/16/55)

November 16, 1955

POTASH
v.
BONACCURSO, APPELLANT.



Appeal, No. 251, Oct. T., 1955, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1954, No. 9794, in case of Hyman Potash v. Saverio Bonaccurso and Coal Operators Casualty Co. Judgment affirmed. Appeal by employer and insurer from award by Workmen's Compensation Board.

COUNSEL

J. Webster Jones, for appellant.

Edward Davis, for appellee.

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

Author: Ervin

[ 179 Pa. Super. Page 583]

OPINION BY ERVIN, J.

On October 20, 1952 a compensation agreement was entered into between claimant, a ritual slaughterer of animals, and defendant, who was engaged in the meat packing business, in which the defendant's insurance carrier joined, providing for the payment of certain benefits to the claimant for an accident and resulting injury described as "slipped on floor while slaughtering steer, tendonitis of the shoulders". Subsequently, on January 13, 1953, the defendant and his insurance

[ 179 Pa. Super. Page 584]

    carrier filed a petition for termination of the aforesaid agreement, averring that the said agreement was entered into under a mistake of fact and of law in that the relationship of master and servant did not exist at the time of entering into the agreement. The referee's action in dismissing the petition was sustained by the Workmen's Compensation Board but the record was remanded by the board for the purpose of obtaining impartial medical testimony on the extent of claimant's disability. In the subsequent rehearing the referee found as a fact "That the above mentioned COMPENSATION AGREEMENT was entered into under a mistake of fact and of law in that the relationship of master and servant did not exist at the time of entering into said Agreement." However, the referee found "That the employer had the right to exercise other control over the claimant" and concluded that claimant was entitled to the payment of compensation based upon a 60% partial disability and entered an award accordingly. On appeal, the board concluded that a master-servant relationship existed between the claimant and defendant on September 16, 1952, the date on which claimant was injured, and affirmed the award of the referee. On appeal by the defendant and his insurance carrier, the Court of Common Pleas No. 1 of Philadelphia County affirmed the board and entered judgment in favor of claimant. From this judgment the defendant's insurance carrier has appealed.

The claimant is a shochet,*fn1 which is the Hebrew name for a ritual slaughterer of cattle, according to

[ 179 Pa. Super. Page 585]

    ancient Jewish law and tradition. His duty is to slaughter the cattle according to such law and determine whether or not it is ritually fit for consumption under Jewish law. In doing this work the shochet performs a religious duty. If the meat is found to be so fit, it is called in Hebrew, "kosher," meaning ritually proper for food according to Jewish law, for those who observe the Jewish dietary laws. The claimant, a rabbi, did all the slaughtering for the defendant, who is engaged in the slaughtering or meat packing business, selling to the trade both kosher and non-kosher meat. About 75% of the cattle slaughtered by the claimant is found to be kosher and the meat thereof sold to the kosher trade, and the remaining 25% is sold to the non-kosher trade, if it passes the required government inspection. It was while engaged in slaughtering for the defendant that claimant slipped on the floor, striking his right shoulder area. As a result of the injury thus sustained claimant, upon medical examination, was found to be 60% disabled.

The sole question involved in this case is whether at the time he was injured on September 16, 1952, the claimant, Hyman Potash, was an employe of the defendant, Saverio Bonaccurso, ...


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