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

COMMONWEALTH COURT OF PENNSYLVANIA


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. § 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 since Jeannette does not have a volunteer fire department.

Gelder counters that he is a volunteer because he did not look to firefighting as his primary means of livelihood.

Initially, to be entitled to the maximum wage presumption, Gelder must establish that he is a member of the class the legislature sought to protect in enacting Section 601. Section 601 states, in pertinent part:

(a) In addition to those persons included within the definition of the word 'employe' as defined in section 104, 'employee' shall also include:

[ 103 Pa. Commw. Page 337]

(1) members of volunteer fire departments or volunteer fire companies, including any paid fireman who is a member of a volunteer fire Page 337} company and performs the services of a volunteer fireman during off-duty hours. . . .

(Footnote omitted; emphasis added.)

Our review of the record discloses that Gelder is not a member of a volunteer fire department. There is no evidence that any chartered, non-profit volunteer fire department or volunteer fire company existed in the City of Jeannette. Therefore, Gelder is essentially a paid contract employee of a municipal fire department.*fn5

We hold that, as a paid fireman, Gelder must be classified as an employee within the scope of the Act and his wages must be determined under the provisions set forth in Section 309, 77 P.S. § 582(d).

The Board decision is reversed and this case is remanded to the Board for computation of benefits consistent with this opinion.

Order

The Workmen's Compensation Appeal Board order, No. A-86887 dated December 27, 1984, is reversed and this case is remanded to the Board for computation of benefits consistent with this opinion.

Jurisdiction relinquished.

Disposition

Reversed and remanded.


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