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decided: June 6, 1975.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles Rickles v. Stephen Gould Paper Company, No. A-68208.


Joseph Hakun, with him Frederick L. Fuges, and MacCoy, Evans & Lewis, for appellants.

Benjamin Kuby, with him Robert B. B. Schatz; Klovsky, Kuby, & Harris ; and James N. Diefenderfer, for appellees.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 19 Pa. Commw. Page 504]

Stephen C. Jacobson was employed on November 9, 1971 as a sales representative of Stephen Gould Paper Company (Gould). He had been so employed for about fifteen years and his work consisted primarily of selling industrial packaging. He had no definite territory but most of his customers were located within a 25 mile radius of Philadelphia. Some, however, were as far away as Long Island, New York. During the first seven or eight years of his employment with Gould, Jacobson drove his own vehicle to call upon the various customers whom he was scheduled to see. After that time, however, his vision gradually deteriorated until eventually he became totally blind, and, he came to rely on others to drive him on his rounds. Occasionally members of his own family did such driving for him, but when his lack of vision reached the point where he could no longer do any driving at all, he found it necessary to hire regular drivers. It was in that capacity that he obtained the services of Charles Rickles, who responded to an advertisement placed by Jacobson in a local newspaper. The two entered into an arrangement whereby Rickles would drive Jacobson to meet his customers on an average of about four hours per day, three or four days per week. Jacobson would usually indicate to Rickles one day in advance whether or not he would need his services the day following, and Rickles was regularly paid $1.80 per hour in cash by Jacobson. Directions as to where Rickles was to go were usually supplied by Jacobson who also supplied a car which he personally leased. At some times,

[ 19 Pa. Commw. Page 505]

    however, it appeared that Rickles got directions from someone in Gould's employ other than Jacobson.

Jacobson himself worked on a commission basis. He normally set up his own schedule of daily appointments, but Gould's sales manager testified that he reserved the right to tell Jacobson where and when to go along his route. The sales manager testified that he occasionally would set up an appointment for Jacobson to meet a customer or he would ask Jacobson to pick up or deliver a sample.

On November 9, 1971 Jacobson, with Rickles driving him, picked up a sample which one of his customers wanted redesigned. He was returning it to Gould's Philadelphia office when his automobile was involved in an accident in which Rickles suffered severe injuries. Rickles then sought benefits from Gould under the Workmen's Compensation Act, and, after a hearing, a referee concluded as a matter of law that Gould was not the employer of Rickles under the Act. The claim, therefore, was denied. On appeal, the Workmen's Compensation Appeal Board reversed without taking additional evidence and ordered the payment of benefits to Rickles. Gould now appeals to this Court, and we must hold, under the particular facts of this case, that Rickles is entitled to benefits.

The narrow issue before us involves the question of whether or not an employer-employee relationship existed between Rickles and Gould so as to render Rickles eligible for workmen's compensation benefits.*fn1 The referee concluded that Gould was not the employer of Rickles and that Rickles was not acting under Gould's supervision or control at the time of the accident. The Board reversed on the basis that Rickles was a subservant of Gould (through Jacobson) and thereby was Gould's employee within the meaning of the Act.

[ 19 Pa. Commw. Page 506]

It is true that the Board's opinion listed its finding of Rickles' alleged subservant status as a "Finding of Fact," yet, as both parties have correctly noted such a determination is actually a conclusion of law, and the Board's scope of review is, of course, broad enough to enable it to consider questions of law. See Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). Gould, nevertheless, argues that the Board's opinion indicates that it made factual determinations in reaching its conclusion, even though they were not formally stated as findings of fact, and Gould asserts, therefore, that the Board exceeded the scope of its review under Cyclops because it made such factual determinations without taking additional evidence.

We have carefully reviewed the record and conclude that, to whatever extent the Board assumed certain facts not explicitly found by the referee, it was fully justified in so doing by the obvious implications of the unrebutted testimony of Gould's sales manager.

Our own scope of review is limited here, of course, to a determination as to whether or not there was a capricious disregard of competent evidence, a violation of constitutional rights has occurred, or an error of law was committed. Cole Steel Equipment Corporation v. Workmen's Compensation Appeal Board, 14 Pa. Commonwealth Ct. 454, 322 A.2d 743 (1974). The rules for determining the existence of the relationship of employer and employee are the same as those at common law for ascertaining the relationship of master and servant, and, where the facts are undisputed, the question of whether or not the relationship existed is one of law. Harris v. Seiavitch, 336 Pa. 294, 9 A.2d 375 (1939). Moreover, the most important factor in determining the existence ...

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