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TILLMAN GILL AND VIRGINIA GILL v. COMMONWEALTH PENNSYLVANIA (02/27/81)

decided: February 27, 1981.

TILLMAN GILL AND VIRGINIA GILL, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND TERRY NORTON, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Terry Norton v. Tillman and Virginia Gill, No. A-77689.

COUNSEL

Andrew F. Napoli, Cohen, Pincus, Verlin, Hahn, Reich & Sherzer, for petitioners.

William K. Adams, for respondents.

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 57 Pa. Commw. Page 162]

This is an appeal by Tillman and Virginia Gill (petitioners) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of compensation to Terry Norton (claimant).

Petitioners, during the period of time in question here, ran a laundromat in Philadelphia. Prior to December of 1976 they were in the process of purchasing the building next door to the laundromat in order to eventually move the laundromat into that facility. Petitioners engaged claimant and several other boys to do such cleaning. Claimant worked on a full-time basis; eight hours per day, five days per week. Claimant was seventeen years old at the time and was "skipping" school to do this work. He was engaged at an hourly rate but actually was paid $100.00 in cash at the end of each week. It is not clear in the record, but claimant had been working at least one month prior

[ 57 Pa. Commw. Page 163]

    to his accident. On December 13, 1976 while performing his duties inside the building, claimant was asked to remove a large box of broken glass. While picking up this box, claimant slipped in a puddle of water causing his face to come in contact with the glass. The result was that the glass cut his right eye and claimant lost his sight in that eye.

Claimant filed a specific loss claim petition for permanent loss of sight in his right eye. After a hearing on March 7, 1979 where claimant and petitioner Tillman Gill testified, the referee found in favor of the claimant on August 1, 1979. On March 20, 1980, without taking new evidence, the Board filed an opinion affirming the referee's award and dismissing petitioners' appeal. We also affirm.

The sole issue in this case is whether claimant is excluded from the purview of The Pennsylvania Workmen's Compensation Act (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 now undisputed that claimant's employment was not in the regular course of petitioners' business, the only question for us is whether his employment was casual in character.*fn1

Petitioners argue that: (1) the referee's findings of fact were not supported by substantial evidence and (2) it was an error of law to conclude that claimant was not a casual employee. Claimant had the ...


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