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INDUSTRIAL VALLEY BANK & TRUST CO. AND RELIANCE INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND ANTHONY TOMASETTI (02/19/75)

decided: February 19, 1975.

INDUSTRIAL VALLEY BANK & TRUST CO. AND RELIANCE INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND ANTHONY TOMASETTI, ADMINISTRATOR OF THE ESTATE OF NATHANIEL ANDERSON, DECEASED, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Nathaniel Anderson v. Industrial Valley Bank & Trust Co., No. A-64115.

COUNSEL

R. D. Harburg, with him Swartz, Campbell & Detweiler, for appellants.

Norman H. Abrahamson, with him Meyer, Lasch, Hankin & Poul, and James N. Diefenderfer, for appellees.

Judges Kramer, Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 16 Pa. Commw. Page 421]

This is an appeal by the Industrial Valley Bank & Trust Company (Bank) from an order of the Workmen's Compensation Appeal Board (Board) dated May 30, 1974, which affirmed a referee's award of compensation to Nathaniel Anderson (Anderson).*fn1 This case has returned to us after we remanded because of certain procedural complications which are fully explained in our prior decision.*fn2 The case is now ripe for an appeal on the merits of the claim.

As we explained in our prior opinion, Anderson made his living collecting junk in a pushcart and selling it to a junkyard. On the recommendation of the owner of the junkyard, he and another man were hired

[ 16 Pa. Commw. Page 422]

    on October 28, 1968, by an officer of the Bank to move several filing cabinets from the main floor of one of the Bank's buildings to the basement of that building, a move which the Bank had to make about once a year. Anderson had never worked for the Bank before, and it was expected that this job would only require a few hours to complete. He was to be paid two dollars per hour. Unfortunately, while he was moving the first cabinet down the steps, it toppled and caused him to fall to the bottom of the steps. The cabinet fell on top of him. He suffered a fracture of his right ankle and filed a claim petition seeking workmen's compensation benefits.

The Bank contends that Anderson is not entitled to compensation because he was not an "employe" as defined in Section 104 of the Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 22 (Supp. 1974-1975). Section 104 excludes from the Act's coverage employes whose work is "casual in character and not in the regular course of the business of the employer. . . ." Anderson's personal representative concedes that Anderson was a "casual employe," and the only issue presented by this appeal is whether his employment, even though "casual," was "in the regular course of the business" of the Bank. There is no material disagreement as to the facts, and the question is one of law. Barnett v. Bowser, 176 Pa. Superior Ct. 17, 106 A.2d 457 (1954). Our power to review for errors of law in a cash such as this is clear. David v. Bellevue Locust Garage, 12 Pa. Commonwealth Ct. 602, 604, 317 A.2d 341, 342 (1974).

The Board concluded that Anderson was engaged in the Bank's regular course of business, and reasoned that this conclusion followed from the fact that record keeping is necessary to a bank's operations. The Board reasoned that Anderson was involved in physically moving bank records when he was injured; hence, his accident

[ 16 Pa. Commw. Page 423]

    was suffered in the regular course of business. The problem with the Board's definition of "regular course of business" is its breadth. We must assume that the Legislature, by inserting the exclusion of coverage in Section 104, intended some real distinction between the primary income-producing activity of an employer, and other operations which, while perhaps necessary, are clearly incidental to the main function of the business enterprise. If this were not so, any employe who is engaged in any activity which is related to the employer's business would be covered by the Act, and we would be left with an almost meaningless statutory ...


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