Appeals from the Order of the Workmen's Compensation Appeal Board in cases of Rickey Paul New v. Borough of Wilmore, No. A-76431; Frank T., Sr. & Rita Mae Chalan, Parents of Frank T. Chalan, Jr., Deceased v. Wilmore Volunteer Fire Company, No. A-76486, and Marion B. New, Widow of Robert P. New, Deceased v. Wilmore Borough, No. A-76487.
Edward G. Kuyat, Jr., Kuyat & Walker, for Borough of Wilmore, petitioner.
Robert G. Rose, with him Spence, Custer, Saylor, Wolfe & Rose, for Pennsylvania National Mutual Casualty Insurance Company, petitioner.
Patrick A. Gleason, Gleason, DiFrancesco, Shahade & Markovitz, for Rickey Paul New and Marion B. New, widow of Robert P. New, respondents.
Raymond J. Zadzilko, Smorto and Persio, for Frank T. Chalan and Rita Mae Chalan, parents of Frank T. Chalan, Jr., deceased, respondents.
Patrick A. Gleason, Gleason, DiFrancesco, Shahade & Markovitz, for Rickey Paul New, petitioner.
Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for Borough of Wilmore and Pennsylvania National Mutual Casualty Insurance Company, respondents.
Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. Dissenting Opinion by Judge Mencer.
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The Borough of Wilmore (borough) and its insurance carrier, Pennsylvania National Mutual Casualty Insurance Company jointly appeal from each of three separate awards of the Workmen's Compensation Appeal Board (Board). Because the awards arose from a common accident, we consolidated the appeals for argument and disposition. The awards in question were to Ricky Paul New for injuries sustained in the accident, to Frank and Rita Mae Chalan whose son Frank T. Chalan, Jr. was killed in the accident, and to Marion B. New whose husband Robert P. New was also killed in the accident. The victims were all members of the Wilmore Volunteer Fire Company (Company).
The facts of the accident are not in dispute: On July 11, 1976, the Company held its annual fund raising picnic. As part of the promotional activities, a huge banner advertising the picnic was strung across Pennsylvania Route 53. The banner was suspended by metallic wires anchored to utility poles on each side of the highway.
On July 13, 1976, about 6:00 p.m., Robert P. New requested Frank T. Chalan, Jr., Ricky Paul New and another member, Tony Zapp, to assist him in removing the banner. Aluminum ladders were placed against the poles on each side of the highway. Robert New climbed one ladder assisted by Zapp. Frank
[ 54 Pa. Commw. Page 149]
T. Chalan, Jr. climbed the other ladder which was held by Ricky Paul New. Apparently the wind blew as Frank T. Chalan, Jr. and Robert New were standing on the ladders, and caused one of the metal wires holding the banner to make contact with high voltage electricity. As a result of receiving a charge of electricity, Frank Chalan, Jr. fell from the ladder onto Ricky Paul New. Robert New descended his ladder to aid Chalan and Ricky Paul New. In doing so, he also received a charge of electricity.
Robert P. New and Frank T. Chalan, Jr., as a result of the electrical charge, died of asphyxiation. Ricky Paul New suffered extensive injury.
This action commenced when the claimants filed separate claim petitions against the borough and its carrier in connection with the casualties. After hearings were held in each case, the referee dismissed the claim petitions of the parents and the widow, respectively, on the grounds that decedents Chalan and New were not "employees" within the meaning of Section 601 of The Pennsylvania Workmen's Compensation Act.*fn1
In the case of claimant Ricky Paul New, the referee found that he was totally and permanently disabled but that he, too, was not an "employee" for workmen's compensation purposes.
On appeal by the claimants, the Board reversed the referee's disallowance of benefits in each case. The finding respecting the total disability of Ricky Paul New was affirmed and "additional compensation" was awarded to the parents of decedent Chalan.
Claimant Ricky Paul New thereafter filed a protective appeal to the Board with a request for a rehearing to correct its decision so as to include payment
[ 54 Pa. Commw. Page 150]
for medical expenses. By supplemental decision, the Board so corrected its Order.*fn2 The borough of Wilmore and its insurance carrier thereafter perfected timely appeals to this court.
We first consider whether the Board properly concluded that decedents Chalan and New and claimant Ricky Paul New were "employees" within the meaning of Section 601 of the Act while engaged in the removal of the banner. That section sets forth the specific duties which volunteer firemen perform to allow them to be considered employees of the municipality they serve. Pursuant to the section, members of volunteer fire companies are entitled to compensation for injuries received "while actively engaged as firemen" and, additionally, "while performing any other duties of such . . . fire department[s] as authorized by the municipality."
The casualties here involved occurred in the course of removing the promotional banner from the highway. The removal of the banner was associated with the activities of a fund raising picnic.
The threshold question, then, is whether the removal of the picnic banner was the performance of a "duty." The Board concluded that the holding of a fund raising picnic and the activities associated with it are traditional and common functions of a volunteer fire company and should be considered a Section 601 duty. We agree, especially where, as the referee found here, the proceeds are used for equipment and training purposes.
The section further requires that the duty be authorized by the municipality. In this regard, the referee found that ...