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MCMANUS v. KUHN. (03/22/61)

March 22, 1961

MCMANUS, APPELLANT,
v.
KUHN.



Appeal, No. 381, Oct. T., 1960, from judgment of Court of Common Pleas of Blair County, Jan. T., 1960, No. 5, in case of John S. McManus v. Leo Kuhn, trading as Kuhn's Market. Judgment affirmed.

COUNSEL

Blair L. McKillip, Jr., with him Harry B. Hogemyer, for appellant.

Robert W. Anthony, for appellee, submitted a brief.

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

Author: Rhodes

[ 194 Pa. Super. Page 545]

OPINION BY RHODES, P.J.

In this workmen's compensation case the claimant filed his petition claiming compensation for an injury sustained on March 27, 1956, while allegedly employed by defendant, Leo Kuhn, trading as Kuhn's Market.

The referee and the Workmen's Compensation Board dismissed claimant's petition on the ground that claimant failed to establish the relationship of employer and employe between himself and defendant at the time of the injury. On appeal the Court of Common Pleas of Blair County affirmed the board.

On March 27, 1956, claimant was loading a truck with debris from the produce market of defendant when he slipped and fell breaking his left arm. The board affirmed the referee's eighth finding of fact as follows:

"Eighth: That the claimant was not an employee of the defendant on March 27, 1956, the date of his accidental injury."

Compensation was accordingly disallowed.

The question whether, on a given state of facts, a claimant is an employe within the meaning of that term as used in the Workmen's Compensation Act, 77 PS ยง 22, is one of law. Doyle v. Commonwealth, 153 Pa. Superior Ct. 611, 613, 34 A.2d 812. The testimony discloses that claimant and defendant had known each other for many years. Claimant did not have steady employment in recent years. He admitted his addiction to alcohol. He frequently borrowed small sums of money from defendant in amounts such as 35 cents, 50 cents, 75 cents, a dollar, apparently to purchase liquor. Subsequently claimant would voluntarily appear at defendant's place of business to ...


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