Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Thomas W. Ross v. County of Armstrong and Borough of Kittanning, No. A-82121.
Joseph F. Grochmal, with him Michael E. Relich, Fried, Kane, Walters & Zuschlag, for petitioner.
Stuart W. Benson, III, Dickie, McCamey & Chilcote, P.C., for respondent, Borough of Kittanning.
Judges Williams, Jr., Craig and Colins, sitting as a panel of three. Opinion by Judge Craig.
[ 81 Pa. Commw. Page 475]
The County of Armstrong appeals an order of the Workmen's Compensation Appeal Board which reversed a referee's order that the Borough of Kittanning pay all future workmen's compensation benefits to the claimant, Thomas W. Ross, and reimburse Armstrong County for all benefits it had already paid to Ross.
We must determine whether the county who hires and pays an employee through the federally funded Comprehensive Employment and Training Act (CETA) program, or the borough for whom the employee actually works, is the "employer" responsible for paying workmen's compensation benefits under The Pennsylvania Workmen's Compensation Act.*fn1
The County of Armstrong hired Ross in 1974 under the federally funded CETA program and assigned him to work for the Borough of Kittanning as a laborer under the supervision of the borough street commissioner. The county paid the CETA employees' wages and provided workmen's compensation coverage for them from funds provided by the federal government specifically for that purpose. Although the borough supervised and directed Ross' daily work, and he reported to the borough supervisor when calling off sick, the county controlled his holiday vacation schedule and retained the authority to fire him.
[ 81 Pa. Commw. Page 476]
Ross suffered a work-related injury on May 7, 1979, and the county, through its insurance carrier, Aetna Life and Casualty Company, began paying workmen's compensation benefits to Ross. At the time of his injury, Ross' co-workers were not borough employees but were also hired by the county through various federal programs. On January 5, 1981, the county filed a petition to review the notice of compensation payable, alleging that the Borough of Kittanning, and not the County of Armstrong, was the statutory employer, and therefore was the party responsible for paying benefits to Ross. The referee entered an order directing the Borough of Kittanning to reimburse the county for all payments made in the past, and to assume responsibility for all payments to be made in the future. The board reversed, and this appeal followed.
The county argues that the determination of which governmental body is the employer under the Workmen's Compensation Act should be governed by a Pennsylvania Superior Court case which held that the most important factor in determining the existence of an employer-employee relationship is actual control or the right to control the work to be done and the manner of its performance. Keller v. Old Lycoming Township, 286 Pa. Superior Ct. 339, 428 A.2d 1358 (1981). In that case, the executrix of the estate of a CETA employee, who had suffered a fatal work-related injury, brought a wrongful death action against the township which directly controlled the deceased's daily work. The Superior Court affirmed the trial court's grant of summary judgment in favor of the township on the ground that the township was the employer of the CETA employee, and therefore was immune from actions at law insofar as the Workmen's Compensation
[ 81 Pa. Commw. Page 477]
Act provides the exclusive remedy.*fn2 Applying the borrowed servant doctrine, the court concluded that the township, rather than the organization which administered the CETA program, had control or the right to control the borrowed employee. See also English v. ...