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HATTER v. LENOX (ET AL. (09/16/65)

decided: September 16, 1965.

HATTER
v.
LENOX (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1963, No. 3579, in case of Mabel Hatter v. Dr. Richard E. Lenox et al.

COUNSEL

Rowland C. Evans, Jr., with him Krusen, Evans & Byrnc, for appellant.

Richard D. Harburg, with him Swartz, Campbell & Dctweiler, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Watkins, J.

Author: Watkins

[ 206 Pa. Super. Page 264]

This is an appeal by Dr. Stephen D. Carmick, the defendant-appellant, from the order of the Court of Common Pleas No. 3 of Philadelphia County reversing the Workmen's Compensation Board and holding the defendant-appellant to be jointly liable for compensation benefits to the claimant Mabel Hatter, with Dr. Richard E. Lenox, the other defendant.

The claimant filed a petition for compensation for a back injury as the result of a fall in the course of her employment on June 28, 1962. The defendant Dr. Lenox answered that at the time of the accident she was in the concurrent employment of both Dr. Lenox and Dr. Carmick, the appellant. The referee found that she was "in the exclusive employ and control of Dr. Richard E. Lenox". The board divided two to one in affirming the referee. The Court of Common Pleas sustained the appeal and directed that benefits be apportioned jointly between the two defendants.

The question to be decided by this Court and the question which was decided by the court below is by whom was this claimant employed at the time of the accident. This is a question of law. Carlson v. Chevrolet Motor Division, 199 Pa. Superior Ct. 461, 185 A.2d 643 (1962).

The fact finders found that the claimant was employed by both Dr. Richard E. Lenox and Dr. Stephen

[ 206 Pa. Super. Page 265]

D. Carmick as a receptionist and general office assistant at a weekly wage of eighty ($80) dollars. Each doctor paid forty ($40) dollars. There was also a finding of fact that at the time of the accident she was in the exclusive employ and control of Dr. Richard E. Lenox. We agree with the court below that this finding of fact is not supported by the record and that the law was not properly applied to the facts.

It is true that she was required to be at work on the day in question earlier than usual to attend to duties for Dr. Lenox but while there and before the arrival of Dr. Carmick or for that matter, if Dr. Lenox didn't arrive, she would sort the mail for both doctors and answer the telephone for both doctors. There was no additional compensation for the earlier arrival and there was nothing in the record to show that she was not subject, under the joint contract, to the control of both doctors. The physical structure of the offices; the entrances at both front and side; the restroom situation; the telephone setup; one typewriter to be used for both doctors; all indicating a joint venture on the part of both doctors for the employment of a receptionist and general office assistant to serve them both.

This situation has existed for a long period of time with different doctors involved and was, of course, arranged for their economic advantage. What Commissioner Geer said in his dissent ...


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