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WORKMEN'S COMPENSATION APPEAL BOARD AND JOSEPH A. COLABELLA v. CHARLES D. PHILLIPS (04/20/77)

decided: April 20, 1977.

WORKMEN'S COMPENSATION APPEAL BOARD AND JOSEPH A. COLABELLA, T/A CORONET TRADING CO. & SORRENTO ITALIAN IMPORTS
v.
CHARLES D. PHILLIPS, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles D. Phillips v. Joseph A. Colabella, t/a Coronet Trading Co. & Sorrento Italian Imports, No. A-71151.

COUNSEL

Robert A. Freedberg, for appellant.

Fredric C. Jacobs, for appellee, Colabella.

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

Author: Kramer

[ 29 Pa. Commw. Page 614]

This is an appeal by Charles D. Phillips (Phillips) from an Order of the Workmen's Compensation Appeal Board (Board), dated June 10, 1976. The order affirms a referee's denial of benefits to Phillips for lack of an employer-employe relationship as required under Section 104 of The Pennsylvania Workmen's

[ 29 Pa. Commw. Page 615]

Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 22.

Phillips is a professional sign painter offering his services under the name of C. Phillips Sign Service. The record shows that he occasionally painted signs and performed various repair work for Joseph A. Colabella, t/a Coronet Trading Company and Sorrento Italian Imports (Colabella). On August 6, 1971, Phillips fell from a ladder while repairing the roof of Colabella's business premises and sustained a broken hip and other injuries. He filed a claim petition on June 2, 1972. Following two remands by the Board, a referee dismissed the petition. He concluded, in the alternative, that Phillips was not an employe of Colabella, but if he was, the relationship was casual in nature and not in the regular course of Colabella's business. The Board affirmed on the basis that there was no employe-employer relationship and Phillips appealed. As we affirm the Board's determination, we need not discuss the alternative reason offered by the referee.

Phillips, as claimant, had the burden of showing that at the time of the injury, an employe-employer relationship existed. Barr v. B & B Camper Sales, 7 Pa. Commonwealth Ct. 323, 300 A.2d 304 (1973). As the referee found that Phillips did not sustain this burden, we are limited to ascertaining whether or not constitutional rights were violated, an error of law was committed, or there has been a capricious disregard of competent evidence. Cole Steel Equipment Corp. v. Workmen's Compensation Appeal Board, 14 Pa. Commonwealth Ct. 454, 322 A.2d 743 (1974).

In determining whether a relationship should be characterized as employer-employe, no one fact is dispositive. Rather, the peculiar facts of each case are examined to determine whether the various indicia commonly associated with a master-servant relationship

[ 29 Pa. Commw. Page 616]

    are more prevalent than not. See Hollen v. Workmen's Compensation Appeal Board, 14 Pa. Commonwealth Ct. 209, 321 A.2d 733 (1974). To this effect, the referee found: (1) that Phillips did not specify an hourly charge for his labor nor were his charges consistent with an hourly rate; (2) there was no agreement between the parties that Phillips was to be Colabella's handyman; (3) there was no specific agreement as to the rate Phillips would receive for fixing the roof; (4) Colabella did not have the right to control when the roof repair would be done by Phillips; (5) Phillips' tax return for the year in which the accident occurred indicates that he is ...


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