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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND ROBERT KOWATCH v. MAHONING TOWNSHIP SUPERVISORS (04/01/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 1, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND ROBERT KOWATCH
v.
MAHONING TOWNSHIP SUPERVISORS, BRISTOL ASSOCIATES AND IM INCORPORATED. MAHONING TOWNSHIP SUPERVISORS, APPELLANT

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Robert Kowatch v. Mahoning Township Supervisors, Bristol Associates and IM Incorporated, No. A-68300.

COUNSEL

Joseph A. Murphy, with him John R. Lenahan, and Lenahan, Dempsey & Murphy, for appellant.

Robert H. Holland, for appellee, Bristol Associates.

Robert Lazorchick, with him Scott & Lazorchick, for appellee, Kowatch.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 24 Pa. Commw. Page 208]

This is an appeal by the Mahoning Township Supervisors (Township) from a decision of the Workmen's Compensation Appeal Board (Board) affirming the referee's award of benefits to the claimant, Robert Kowatch.

The claimant, a volunteer fireman, was on the infield area of the Mahoning Speedway on July 21, 1972 when a stock car struck a pole, causing the pole to strike and injure the claimant. IM Incorporated (IM) was the lessee and operator of the speedway which was located in Mahoning Township on property owned by Bristol Associates (Bristol), and the claimant was present there as a member of the Mahoning Valley Volunteer Fire Company (Fire Company) with which IM regularly arranged to have volunteer firemen and township fire equipment present when car races were being held. IM paid twenty-five dollars to the fire company's fund for each night of attendance and also paid for the refilling of any discharged fire equipment.

In workmen's compensation cases, our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed or a necessary finding of fact was not supported

[ 24 Pa. Commw. Page 209]

    by substantial evidence. Dunlap v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 19, 330 A.2d 555 (1975); Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).

The issue involved here is whether or not the claimant was an employee of the township under the Workmen's Compensation Act*fn1 (Act) when he was injured, and, when the accident occurred, the Act provided in part as follows:

"within the definition of the word 'employe' . . . there shall be included all members of . . . volunteer fire companies . . . of the various . . . townships, who shall be and are hereby declared to be 'employes' of such . . . townships, for all the purposes of said act, and shall be entitled to receive compensation in case of injuries received while actually engaged as . . . firemen or while going to or returning from any fire which the fire companies . . . of which they are members shall have attended, or while participating in instruction fire . . . drills in which the fire company . . . of which they are members shall have participated, or while repairing or doing other work about or on the fire . . . apparatus or buildings and grounds of such fire company upon the authorization of the chief or corps president or other such person in charge, or while answering any emergency call for any purpose, or while riding upon the fire . . . apparatus, owned or used by the fire companies . . . of which they are members, at any time, or while performing any other duties of such . . . companies . . . authorized by such . . . townships. . . ."*fn2 (Emphasis added.)

[ 24 Pa. Commw. Page 210]

The claimant here could qualify for workmen's compensation benefits only if, at the time of his injury, he was: (1) actually engaged as a fireman; or (2) performing other duties authorized by the Township.

In determining whether or not the claimant was actually engaged as a fireman, we look to prior interpretations by our courts of language in similar provisions of the Act. It was held in Shindledecker v. New Bethlehem Borough, 145 Pa. Superior Ct. 77, 20 A.2d 867 (1941), interpreting the Act of May 14, 1925, P.L. 714,*fn3 that the services of volunteer firemen are only one example of gratuitous services received by a borough which contribute to the borough's benefit without the individuals rendering such services becoming employees of the borough. Furthermore, the court said that volunteer firemen are not general employees of a borough and, absent statutory provision, there is no public policy of compensation and compensation awards can be granted only within the scope of liability imposed by statute. The "[i]njury, to be compensable, must have occurred within the restricted circumstances which alone give rise to the right under the act. Casual injuries incident to other activities of the volunteer fire company, were not contemplated by the act, except to be excluded by necessary implication as risks which must continue to be assumed by the members." Shindledecker, supra, 145 Pa. Superior Ct. at 80, 20 A.2d at 868. The four volunteer firemen

[ 24 Pa. Commw. Page 211]

    concerned there were held not to be "employes" under the Act when they were injured while returning from a meeting which concerned the convention of their volunteer fire company's organization, the Mutual Firemen's Association. This holding prevailed, despite the fact that the association's convention furthered the interests and accomplished the purposes of its member fire companies, for it was held that the four firemen were not "actually engaged as firemen" at the time the accident occurred and that there was, therefore, no basis in the statute for a compensation award.

In Lees v. State Workmen's Insurance Fund, 146 Pa. Superior Ct. 70, 22 A.2d 61 (1941), it was held that the statutory provision*fn4 providing that the claimant, a volunteer fireman, must be actually engaged as a fireman or performing other duties of the fire company to fall within the statutory provision for compensation must be strictly construed.*fn5 In Lees, supra, a volunteer fireman had rushed into his own home in an effort to save his children

[ 24 Pa. Commw. Page 212]

    from fire and it was held that he was acting as a father, not as a member of the fire company, and so was not a statutory employe of the borough for purposes of entitlement to workmen's compensation. In view of these cited authorities and the wording of the statute concerned, we find that the claimant here was not "actually engaged" as a fireman at the time of his injury.

We now direct our attention to the question of whether or not the claimant was performing other duties authorized by the Township. The Township argues that the authorization required by the statute must be expressly given and that implied authorization is not sufficient to hold the Township liable here as the claimant's employer. We agree. The arrangements made here, to have volunteer firemen and fire company equipment at the race track, were made through the fire company chief. He testified, however, that he had never appeared before the Board of Supervisors and asked permission for the fire company to give fire protection at the Mahoning Speedway.*fn6 It is true, of course, that the three township supervisors were clearly aware of these arrangements, all three being members of the volunteer fire company, and two of them having provided services on occasion at the race track. But the Chairman of the Board of Supervisors testified as follows:

"Q. Did the Fire Company, at any time, formally appear before the Board of Township Supervisors and request authorization to provide fire protection at the Speedway?

[ 24 Pa. Commw. Page 213]

"A. I would say, no, they never appeared before the Board, but we were asked, as individuals, and gave our approval for them to go."

He further testified that he had checked the minutes of Township Supervisors' meetings and that official authorization of the activity had never been requested or granted.*fn7

In Wittlinger v. Millersville Borough, 167 Pa. Superior Ct. 231, 74 A.2d 813 (1950),*fn8 which involved an injury to a volunteer fireman while he was assisting fellow firemen in dismantling and returning bleacher stands borrowed by the fire company in connection with a fund-raising festival held for the fire company's benefit, he was held to have the burden of showing that he was performing a duty authorized by the borough. The evidence there indicated that the borough had permitted the

[ 24 Pa. Commw. Page 214]

    festival to be held without objection and that it took place on the premises of the fire company. The court said, however, that

"by no extension of the well established principle that the Workmen's Compensation Act is to be liberally construed can it be said that such evidence constitutes 'authorization' by the borough so as to impose liability upon it as an employer." Wittlinger, supra, 167 Pa. Superior Ct. at 235, 74 A.2d at 815."

In the case at hand, it seems clear that the fire company had the implied authorization of the Township to provide fire protection at the Speedway. However, as a municipal authority, the Township can only act through its official governing body.*fn9 And, in order to protect the interests of all of its citizens, the Township cannot be said to have authorized the fire company's activity and thereby to have become the statutory employer of the claimant for purposes of workmen's compensation, unless that authorization was expressly given.

In a workmen's compensation case, the question of whether or not the claimant concerned was an employee

[ 24 Pa. Commw. Page 215]

    of a party is a question of law. Workmen's Compensation Appeal Board v. American Mutual Liability Insurance Company, 19 Pa. Commonwealth Ct. 502, 339 A.2d 183 (1975). The Board, therefore, committed an error of law when it included the claimant within the statutory definition of the word "employee" and awarded benefits. At the time of his injury, the claimant was not actually engaged as a fireman, was not performing a duty authorized by the Township and could not have been, therefore, an "employee" of the Township as that term was defined by the statute for purposes of Workmen's Compensation benefits.

Our decision requires the reversal of the claimant's compensation award on the basis that the township was not the employer and, therefore, that it was not liable for workmen's compensation payments to the claimant. IM and Bristol, however, had been joined by the Township as additional defendants before the referee, but "dismissed" by the referee in his decision that the Township was the employer. We, therefore, must remand this case to the Board for the purpose of determining whether IM or Bristol, or neither, was the employer of the claimant when he was injured.

Accordingly, we enter the following

Order

And Now, this 1st day of April, 1976, the decision of the Workmen's Compensation Appeal Board, dated January 2, 1975 is reversed and the award set aside as to Mahoning Township. The matter is remanded to the Workmen's Compensation Appeal Board which may conduct a hearing or return the case to the referee to determine whether IM Incorporated or Bristol Associates, or neither, was the employer of Robert Kowatch when the injury involved herein occurred.

Disposition

Reversed and remanded.


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