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DUPREE v. BARNEY (09/20/60)

September 20, 1960

DUPREE
v.
BARNEY, APPELLANT.



Appeal, No. 88, April T., 1960, from judgment of Court of Common Pleas of Erie County, Sept. T., 1958, No. 20, in case of McKinley Dupree v. Frank H. Barney. Judgment affirmed.

COUNSEL

Fred B. Sieber, with him Sieber & Lund, for appellant.

William W. Knox, with him Knox, Weber, Pearson & McLaughlin, for appellee.

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

Author: Watkins

[ 193 Pa. Super. Page 333]

OPINION BY WATKINS, J.

This workmen's compensation appeal is from the judgment of the Court of Common Pleas of Erie County, in favor of the claimant-appellee, McKinley Dupree. The claimant, a migratory farm worker, was employed by the appellant-defendant, Frank H. Barney, on a farm near Girard, Erie County, Pennsylvania, where he worked on a potato grading machine, grading potatoes, putting them in bags and stacking them in a warehouse. He was being paid $1 per hour. He first went to work for the defendant as a potato picker,

[ 193 Pa. Super. Page 334]

    working in Sherman, New York, Findley Lake, New York and finally in Girard, Pennsylvania.

The employer supplied the claimant and other migrant workers with living quarters on the property, in a shanty located one-third mile from his work. At first there were four workers in the shanty but at the time of the accident it was occupied by three. The straw for the mattresses on the bunk beds was supplied by the employer and the shanty was illuminated by a lighted wick or rag inserted in a container filled with kerosene. The claimant, on the night of January 19, 1956, was lying on his bunk reading a magazine by the kerosene light, when it either exploded or fell upon him, setting the bunk on fire and causing the claimant serious burns of his chin and upper arm. Skin grafts were necessary and although the burns healed, he was left with scar tissue on the right arm pit which limited the motion of the arm. The referee awarded benefits on a fifty per cent disability basis. The Workmen's Compensation Board sustained the award and the Court of Common Pleas of Erie County affirmed the board and entered judgment for the claimant.

Although there was some argument by the claimant that the grading and stacking of potatoes was not agricultural labor, it is not necessary for us to consider this point as we think it clear that he was covered by the Workmen's Compensation Law. This, by virtue of the employer's voluntary election to be so covered on January 25, 1937, and this election accepted by the board. His election was made under the provisions of the Act of July 18, 1935, P.L. 1316, where coverage of agricultural workers was made optional by the following language: "Be it enacted that nothing contained in any article of an Act entitled the Workmen's Compensation Act of 1915 shall apply to or in any way affect any person who, at the time of injury, is engaged

[ 193 Pa. Super. Page 335]

    in domestic service or agriculture: provided however, that in cases where the employer of any such person shall have, prior to such injury, by application to the Workmen's Compensation Board, approved by the Board, elected to come within the provisions of the Workmen's Compensation Act of 1915 and the supplements and amendments thereto, the provisions of this supplement shall not apply."

There is no question but that the employer applied for and secured permission to be covered by the Act and was so covered until the legislature passed the Act of 1937, June 4, Section 104, P.L. 1552, 77 PS § 22. This Act repealed the Act of 1935 generally and did not re-enact the optional provision, and it was not until the Act of June 21, 1939, P.L. 565, 77 PS § 1a, effective July 1, 1939, that optional coverage for agricultural workers was re-enacted.

There can be no doubt that from the effective date of the Act of 1937, supra, to the effective date of the Act of 1939, supra, employers engaged in agricultural pursuits could not exercise any election for workmen's compensation coverage, because during that period no such option existed. However, this employer had exercised the option when it was in effect and as a result of his election, the relationship between this employer and his employees became contractual, and although the legislature "'may at any time alter, amend or repeal such [procedural] provisions without offending constitutional restraints; ...'" Beard, Inc. v. St. Bd. of Undertakers, 387 Pa. 261, 128 A.2d 49 (1956), such action cannot abrogate vested contractual rights. Liberato et al. v. Royer & Herr et al., 81 Pa. Superior Ct. 403 (1923); ...


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