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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA v. MARIO PICCOLINO (07/18/75)

decided: July 18, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA, ALBERT SEPPI, T/A JOSEPH SEPPI & SON AND GULF INSURANCE CO., INSURANCE CARRIER,
v.
MARIO PICCOLINO, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mario Piccolino v. Albert Seppi, t/a Joseph Seppi & Son, No. A-68522.

COUNSEL

John F. Will, Jr., with him Will & Keisling, for appellant.

Theodore E. Breault, with him Egler and Reinstadtler, for appellee.

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

Author: Kramer

[ 20 Pa. Commw. Page 370]

This is an appeal by Mario Piccolino (Piccolino), a minor, from an order of the Workmen's Compensation Appeal Board (Board), dated November 7, 1974, which reversed a referee's award of benefits to Piccolino.

The sole issue in this appeal is whether Piccolino was an "employe" under section 104 of the Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 22 (Supp. 1974-1975). The relevant statutory provision reads as follows:

"The term 'employe,' as used in this act is declared to be synonymous with servant and includes --

"All natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer. . . ."

[ 20 Pa. Commw. Page 371]

The referee's findings of fact were accepted by the Board, which reversed only as to the legal conclusion drawn from those findings. This appeal does not encompass any challenge regarding the evidentiary support of the referee's findings and, therefore, our review is only to determine if there was an error of law. Barnold Shoes, Inc. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 73, 308 A.2d 189 (1973). The parties disagree on the question of whether the referee's findings, and the evidence which supports them, warrant a conclusion that Piccolino was an "employe" of Joseph Seppi & Son (Seppi).

The findings upon which this case turns read, in relevant part:

"THIRD That Article III of the Workmen's Compensation Act, as amended, applies to the contract of employment existing between Mario Piccolino, a minor and Albert Seppi t/a Joseph Seppi & Son, on July 11, 1972. (Emphasis added.)

"FOURTH: That Mario Piccolino began to work for Joseph Seppi & Son in March of 1972 and continued to work on Saturdays during April, May and June.

"FIFTH: That Mario Piccolino after school was out in the middle of June, went on a vacation with his parents and then at the end of June began to work regularly until July 11, 1972 for defendant.

"SIXTH: That while Mario Piccolino was employed by defendant, he was under the direction and ...


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