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MILLER MOTOR MART AND ERIE INSURANCE EXCHANGE v. COMMONWEALTH PENNSYLVANIA (10/24/79)

decided: October 24, 1979.

MILLER MOTOR MART AND ERIE INSURANCE EXCHANGE, INSURANCE CARRIER, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ALICE SINES, WIDOW OF LOWELL SINES, RESPONDENTS. MILLER MOTOR MART AND ERIE INSURANCE EXCHANGE, INSURANCE CARRIER, PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND LOIS W. THOMAS, WIDOW OF SAMUEL EUGENE THOMAS, RESPONDENTS



Appeals from the Orders of the Workmen's Compensation Appeal Board in cases of Alice Sines, Claimant, widow of Lowell Sines v. Miller Motor Mart, No. A-72316; and Lois W. Thomas, Claimant, widow of Samuel Eugene Thomas v. Miller Motor Mart, No. A-72013.

COUNSEL

Elmer G. Klaber, for petitioners.

Oliver N. Hormell, for respondents.

Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 46 Pa. Commw. Page 585]

Miller Motor Mart (Miller Motor) and Erie Insurance Exchange have appealed from an order of the Workmen's Compensation Appeal Board affirming a referee's award of compensation benefits to Alice Sines and Lois Thomas, whose husbands, Lowell Sines and Samuel Thomas, were killed while transporting a fuel tank to Miller Motor premises.

Miller Motor was engaged in the business of selling farm machinery, lawn and garden equipment and gasoline from pumps located on its premises. Desirous of expanding its business to include the sale of diesel fuel, Miller Motor ordered a two thousand gallon tank from a petroleum company to be used for the storage of diesel fuel. Subsequently, Miller Motor learned of an opportunity to obtain a four thousand gallon fuel tank for nothing if it provided transportation of the tank to its premises. To this end, a partner or partners of Miller Motor asked Samuel Thomas and Lowell Sines to take a truck owned by Miller Motor, pick up the tank and transport it back to Miller Motor. Each man

[ 46 Pa. Commw. Page 586]

    was to be paid $25.00 by Miller Motor for the day's work. On the way back to Miller Motor, the tank exploded, killing Samuel Thomas. Lowell Sines died from injuries thirteen days later. The widows of Thomas and Sines filed fatal claims petitions and benefits were awarded by the referee whose decision was affirmed by the Board.

The issue in this case is whether Thomas and Sines are excluded from the purview of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., by operation of Section 104 of the Act, 77 P.S. § 22, which excludes from the Act's coverage "persons whose employment is casual in character and not in the regular course of the business of the employer." Since it is agreed that Miller Motor's employment of Thomas and Sines was casual in character, the only question presented is whether their employment was "in the regular course of business" of Miller Motor. This is a question of law, Barnett v. Bowser, 176 Pa. Superior Ct. 17, 106 A.2d 457 (1954). We are compelled by the authorities to hold that, contrary to the Board's conclusion of law, Thomas and Sines were not employed in the regular course of Miller Motor's business.

Stated simply, Mrs. Thomas and Mrs. Sines take the position that, because Miller Motor wanted to expand into diesel fuel sales (and does, in fact, now sell diesel fuel), the procurement of the four thousand gallon tank was a necessary prerequisite to the sale of diesel fuel and the employment of their husbands was therefore in furtherance of the regular course of Miller Motor's business. We believe the authorities compel the opposite result. Industrial Valley Bank & Trust Co. v. Workmen's Compensation Appeal Board, 16 Pa. Commonwealth Ct. 420, 332 A.2d 882 (1975).

In Industrial Valley, the Bank hired one Anderson for a few hours to move some ...


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