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CITY JEANNETTE v. WORKMEN'S COMPENSATION APPEAL BOARD (GELDER) (01/27/87)

decided: January 27, 1987.

CITY OF JEANNETTE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GELDER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Glenn S. Gelder v. City of Jeannette, No. A-86887.

COUNSEL

Dennis N. Persin, Stewart, Belden, Herrington & Belden, for petitioner.

Robert Y. Cassol, for respondent, Glenn S. Gelder.

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 103 Pa. Commw. Page 335]

The City of Jeannette appeals a Workmen's Compensation Appeal Board (Board) order affirming a referee's determination that Glenn S. Gelder, in receiving partial disability benefits, was entitled to a presumption of maximum wages under Section 601 of The Pennsylvania Workmen's Compensation Act (Act).*fn1 We reverse and remand.

The City of Jeannette employs six full-time salaried firemen and one full-time chief. Gelder, whose hand was injured at a training session, is one of approximately forty additional "call firemen" who are paid $3.25 an hour when and if he chooses to attend a fire or training session.*fn2 These call firemen receive no fringe benefits or pensions.

At issue is whether Gelder should be compensated at his part-time average weekly rate according to the provisions set forth in Section 309 of the Act, 77 P.S. ยง 582(d),*fn3 or whether he is entitled to the higher wage presumption of a full-time weekly rate reserved for volunteer firemen in Section 601.

[ 103 Pa. Commw. Page 336]

The referee found that the sum of $3.25 per hour was not a valuable consideration for services rendered*fn4 but rather a gratuity. The Board also concluded that Gelder was a volunteer fireman and thus entitled to the maximum wage presumption.

Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or any necessary finding of fact is not supported by substantial evidence. Cox v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 59, 430 A.2d 1009 (1981).

The City of Jeannette contends that Gelder's receipt of remuneration for his services as a fireman endows him with employee and not volunteer status. Further, it maintains that Section 601 does not apply ...


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