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NORTHERN CENTRAL BANK AND TRUST COMPANY AND UNITED STATES FIDELITY AND GUARANTEE INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (KONTZ) (03/20/85)

decided: March 20, 1985.

NORTHERN CENTRAL BANK AND TRUST COMPANY AND UNITED STATES FIDELITY AND GUARANTEE INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (KONTZ), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Raymond O. Kontz v. Northern Central Bank & Trust Co., No. A-84470.

COUNSEL

Ronald C. Travis, Murphy, Mussina, Harris, Travis, Rieders & Humphrey, for petitioners.

Peter J. Campana, with him, Ambrose R. Campana, Campana & Campana, for respondents.

Judges MacPhail, Barry and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr., did not participate in the decision in this case.

Author: Macphail

[ 88 Pa. Commw. Page 278]

Northern Central Bank and Trust Company (Petitioner) appeals here from a decision of the Workmen's Compensation Appeal Board (Board) affirming the referee's award of benefits to Raymond O. Kontz (Claimant).*fn1

The issues presently before us are 1) whether Claimant was an employee of Petitioner at the time he suffered his injury and 2) assuming that Claimant was an employee of Petitioner, whether he was a casual employee.*fn2

[ 88 Pa. Commw. Page 279]

A claimant seeking Workmen's Compensation benefits has the burden of proving that an employment relationship exists. Wingert & Brechbill v. Workmen's Compensation Appeal Board, 44 Pa. Commonwealth Ct. 55, 402 A.2d 1157 (1979).*fn3

The term "employe" is defined in Section 104 of The Pennsylvania Workmen's Compensation Act (Act),*fn4 which states in pertinent part that the term includes "[a]ll natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer . . . ." The existence of an employer-employee relationship is a question of law which must be determined on the basis of the facts of the individual case. North Penn Transfer, Inc. v. Workmen's Compensation Appeal Board, 61 Pa. Commonwealth Ct. 469, 434 A.2d 228 (1981). Various indicia have been set forth to use as guides in making the determination whether an employer-employee relationship exists. See J. Miller Co. v. Mixter, 2 Pa. Commonwealth Ct. 229, 232, 277 A.2d 867, 869 (1971). "[T]he key element is whether the alleged employer had the right to control the work to be done and the manner in which the work is performed." North Penn Transfer, Inc., 61 Pa. Commonwealth Ct. at 472, 434 A.2d at 229 (emphasis added). Further, it is the existence of the right to control which is critical irrespective of whether the

[ 88 Pa. Commw. Page 280]

    control is exercised. Mature v. Angelo, 373 Pa. 593, 596, 97 A.2d 59, 60 (1953).

The referee found as fact*fn5 that Claimant occasionally directed traffic to assist customers using Petitioner's drive-in window, substituting on an infrequent basis for the person who usually performed this job. He worked approximately twenty-five hours in 1978. The record shows without contradiction, that these duties were performed only on Fridays. Claimant and the person for whom he substituted were both policemen.*fn6 Claimant provided the clothing which he wore while ...


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