Appeal from the Order of the Court of Common Pleas of Delaware County in case of Commonwealth of Pennsylvania v. Catherine M. Bley, widow of Walter Leroy Bley, deceased, dated December 23, 1975.
Mary Ellen Krober, Assistant Attorney General, for appellant.
Richard C. Tinucci, for appellee.
Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 28 Pa. Commw. Page 343]
This is an appeal by the Commonwealth of Pennsylvania, Bureau of Occupational Injury and Disease Compensation (Bureau), from an order of the Court of Common Pleas of Delaware County. The court affirmed an order of the Workmen's Compensation Appeal Board (Board) which dismissed the Bureau's appeal of a referee's award of compensation for the widow (claimant) of Walter Leroy Bley (deceased).
The deceased had been employed as a repairman and an auxiliary policeman in the Borough of Collingdale. He had also been a volunteer fireman for the Borough and for the Collingdale Fire Company for a period in excess of 12 years. On April 22, 1971, he responded with other volunteers to a fire at a plumbing supply house, and, while fighting the fire, he collapsed, and he was later pronounced dead on arrival at a local hospital. The referee found the cause of death to be a coronary occlusion brought on by the excitement and extreme exertion of fighting the fire.
The question before us is one of first impression. We are asked to determine whether or not volunteer firemen are included within the coverage of the Pennsylvania Occupational Disease Act (Act).*fn1 Because our research indicates that volunteer firemen do not qualify as employes as that term is defined within this particular Act, we must therefore reverse the order of the court below and of the Board and deny benefits.
[ 28 Pa. Commw. Page 344]
The jurisdictional section of the Act, 77 P.S. § 1201, provides that it applies to "disabilities and deaths caused by occupational disease as defined in this act, resulting from employment within this Commonwealth . . . ." The term "employee" is defined in Section 104 of the Act, 77 P.S. § 1204:
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. . . . (Emphasis added.)
In cases involving a similar definition of employe in The Pennsylvania Workmen's Compensation Act*fn2 (Workmen's Compensation Act), we have previously identified certain factors which are indicative of an employer-employe relationship.*fn3 Prominent among these factors is the requirement of payment for services rendered on a regular basis.
The facts here are not in dispute. The deceased was a volunteer fireman, and as such received no wages or other compensation for his firefighting activities. His widow claiming benefits under the Act for the death of her husband has the burden of proving, therefore, that her deceased husband was an employe and that the relationship between her husband and the defendant was that of employer and ...