Appeal from the Order of the Workmen's Compensation Appeal Board in case of Richard R. Forschner v. Richie's House of Steak, Inc., No. A-76801.
Bart E. Ecker, Laputka, Bayless, Ecker & Cohn, P.C., for petitioner.
Joseph J. Musto, Griffith, Aponick & Musto, for respondents.
President Judge Crumlish and Judges Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers.
[ 60 Pa. Commw. Page 259]
The appellant, Richard Forschner, sole stockholder of Richie's House of Steak, Inc., filed a claim petition for workmen's compensation benefits for total disability caused by a back injury sustained in lifting a box of meat while at work for Richie's.
At the referee's hearing the claimant testified and introduced the report of Dr. Leo Corazza, a treating physician. The employer introduced the records of Hazleton State General Hospital where the claimant was treated. The referee found that the claimant worked as a manager, part-time cook, and bartender for Richie's and was its employee under Section
[ 60 Pa. Commw. Page 260104]
of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 22, which pertinently provides that "[e]very executive officer of a corporation . . . shall be an employee of the corporation." The referee also found that the claimant was injured at work on March 25, 1981, and suffered total disability from March 25, 1978, to August 14, 1978.
On appeal the Workmen's Compensation Appeal Board (Board) reversed the referee's decision on the grounds (1) that as sole stockholder of Richie's the claimant was not an employee entitled to benefits and (2) that the record did not support the referee's finding that the claimant's disability was caused by an injury sustained at work. We believe that the Appeal Board erred on both grounds and reverse its order dismissing the application for benefits.
In Zeruld v. Workmen's Compensation Appeal Board, 29 Pa. Commonwealth Ct. 189, 410 A.2d 954 (1980), handed down after the Appeal Board's decision in this case, we held that the sole stockholder, who was also president and director of a corporation for whom he worked, was an employee by the express provision of Section 104 that executive officers of corporations are employees; and that the corporation as employer should not be disregarded in the absence of evidence that the corporate form was used somehow fraudulently or illegally by the controlling stockholder. The employer here contends that because the record indicates only that the claimant is an officer of Richie's without explicitly showing that he is an "executive" officer, the circumstances do not fit Section 104, but the claimant when asked if he were the only officer of Richie's testified that "my bookkeeper is secretary, treasurer." Since Section 1406 of the Business Corporation Law, Act of May 5,
[ 60 Pa. Commw. Page 2611933]
, P.L. 364, as amended, 15 P.S. § 1406, requires that every business corporation have a president, a secretary, and a treasurer, it was proper and natural to infer that the claimant is president and therefore an executive officer. Additionally, the record, as that in Zeruld, contains no ...