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BARNOLD SHOES v. WORKMEN'S COMPENSATION APPEAL BOARD AND RAY CUNNINGHAM (07/31/73)

decided: July 31, 1973.

BARNOLD SHOES, INC. AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND RAY CUNNINGHAM, J. EDWARDS AND COMPANY, BARNOLD BARTSCHI AND THE BARTSCHI FOUNDATION, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ray Cunningham v. J. Edwards & Company, The Bartschi Foundation and Barnold Bartschi, Nos. A-64676 and A-64837.

COUNSEL

Henry F. Furman, with him John F. McElvenny and Clifford V. Long, for appellants.

Louis J. DiGiacomo, for claimant, appellee.

David J. Griffith, for employer, appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Blatt. Judge Rogers did not participate. Opinion by Judge Kramer.

Author: Kramer

[ 10 Pa. Commw. Page 75]

This is an appeal from an order of the Pennsylvania Workmen's Compensation Appeal Board dated October 26, 1972, awarding workmen's compensation to Ray Cunningham (Cunningham) for total disability against Barnold Shoes, Inc., thereby dismissing its appeal. The appeals of J. Edwards and Company, the Bartschi Foundation and Barnold Bartschi were sustained in said order.*fn1 Cunningham's claim arose out of an automobile accident occurring on May 24, 1967 at about two o'clock p.m. while Cunningham was traveling from his home to an office of a development known as Swiss Pine, in Chester County, which is owned and operated by The Bartschi Foundation. The referee found that Cunningham was injured in the course of his employment on the business of his employer.*fn2 The referee also found that Cunningham was employed by all of the employers involved and "that their activities and interests are so interrelated and intertwined that claimant's endeavors furthered the business of each. . . ." The Board vacated the findings and conclusions of the referee as to who employed Cunningham and concluded that he was employed solely by Barnold Shoes, Inc. Although Barnold Shoes, Inc. initially filed exceptions to the findings and conclusions of the Board that Cunningham was acting within the course of his employment

[ 10 Pa. Commw. Page 76]

    by Barnold Shoes, Inc., this issue was later dropped by Barnold Shoes, Inc., as set forth in its reply to a motion to quash, which motion was later denied by the President Judge of this Court.

The sole remaining question presented to this Court is the propriety of the Board's finding and conclusion that Cunningham was in the employ solely of Barnold Shoes, Inc., when he suffered his injuries. The facts of this case are complicated by the fact that Barnold Bartschi is the sole owner and operator of six or seven corporations which are so interrelated and intertwined that it is difficult to determine for which of the many corporations Cunningham was working at any given moment. The record clearly shows that Cunningham was a long-time employee of several of Barnold Bartschi's corporations, and that his work was under the personal direction of Barnold Bartschi. At the time of the accident, Cunningham was on the payroll of Barnold Shoes, Inc., but this factor alone is not controlling.

It is the contention of Barnold Shoes, Inc. (actually its insurance carrier) that Cunningham was acting for one or more of the other Bartschi-owned corporations, and that he was controlled by Barnold Bartschi personally at the time of the accident. Arguably, there is evidence in the record to support this contention; however, it is not for this Court to make a de novo determination as to the credibility to be given the evidence.

In a case where the claimant has prevailed before the Board, our scope of review is limited to ascertaining whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. See Arnold Coal & Supply Co., Inc. v. Markle, 8 Pa. Commonwealth ...


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