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PLANKINTON v. SCHURR ET UX. (01/21/58)

January 21, 1958

PLANKINTON
v.
SCHURR ET UX., APPELLANTS.



Appeal, No. 333, Oct. T., 1957, from judgment of Court of Common Pleas of Chester County, April T., 1957, No. 37, in case of Alphonso A. Plankinton v. Raymond C. Schurr et ux. Judgment reversed.

COUNSEL

Samuel Lichtenfeld, for appellants.

George D. Sheehan, with him Perry S. Bechtle, Domenic D. Jerome, and Lynch & Jerome, for appellee.

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

Author: Hirt

[ 185 Pa. Super. Page 42]

OPINION BY HIRT, J.

The claimant, a carpenter, was injured when he fell from a ladder in the house of the defendants, then in the course of construction. The referee denied compensation, under § 104 of the Workmen's Compensation Act as amended June 21, 1939, P.L. 520, 77 PS § 22, on the ground that claimant's employment was casual and not in the regular course of the business of the defendant Raymond C. Schurr. The board reversed and on the finding that claimant was an employe of the defendants, awarded compensation. The lower court affirmed, on its conclusion that the claimant's employment was not casual in character. In resolving the question whether claimant is entitled to compensation under the exclusion of the above section of the Act we find it necessary to reverse the judgment entered on the award as a matter of law. Boyd v. Philmont Country Club et al., 129 Pa. Superior Ct. 135, 195 A. 156.

Raymond C. Schurr for about 44 years had been in the continuous employ of Philadelphia Transportation

[ 185 Pa. Super. Page 43]

Company. He was 64 years old and, in contemplation of impending retirement on age he, with his wife, sold their city property and bought an acre of suburban land on which they began the construction of a dwelling house in the spring of 1954. Their intention, since consummated, was to move on to the property and to make it their home. They obtained a set of suitable plans from their lumber dealer and let out the cement and stone work, the plumbing and heating to independent contractors. Defendant Raymond C. Schurr himself did all of the electrical work. Over weekends and during his time off from his regular job he with two friends performed much of the other work of construction. There was no general contractor. Schurr hired the first carpenter, who worked on the job, about May 15, 1954 but discharged him three weeks later because his work was not satisfactory. He then employed the claimant on an hourly basis to do a particular part of the construction work as indicated by the plans. Claimant's status on the work was that of an employe; he was not an independent contractor. Thomas v. Bache et al., 351 Pa. 220, 40 A.2d 495; Potash v. Bonaccurso, 179 Pa. Superior Ct. 582, 117 A.2d 803.

He had worked, in all, but 69 hours at the time of the accident. Schurr testified that the claimant then had performed all of the work that he had been hired to do. Claimant however contended that there was still two weeks work for him on the job. After claimant left no one was hired in his place. Schurr did all of the remaining carpenter work, and the defendants have been living in the house since October 1954.

In Blake v. Wilson, 268 Pa. 469, 478, 112 A. 126, it was held that "regular course of business of the employer" has reference to "some particular occupation or employment habitually engaged in for livelihood ...


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