Borough of Wilmore & Pennsylvania National Mutual Casualty Insurance v. New

419 A.2d 1383, 54 Pa. Commw. 145, 1980 Pa. Commw. LEXIS 1746
CourtCommonwealth Court of Pennsylvania
DecidedOctober 2, 1980
DocketAppeals, No. 1537 C.D. 1979, 1538 C.D. 1979, 1539 C.D. 1979 and 1575 C.D. 1979
StatusPublished
Cited by9 cases

This text of 419 A.2d 1383 (Borough of Wilmore & Pennsylvania National Mutual Casualty Insurance v. New) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borough of Wilmore & Pennsylvania National Mutual Casualty Insurance v. New, 419 A.2d 1383, 54 Pa. Commw. 145, 1980 Pa. Commw. LEXIS 1746 (Pa. Ct. App. 1980).

Opinions

Opinion by

Judge Williams, Jr.,

The Borough of Wilmore (borough) and its insurance carrier, Pennsylvania National Mutual Casualty Insurance Company jointly appeal from each of three separate awards of the Workmen’s Compensation Appeal Board (Board). Because the awards arose from a common accident, we consolidated the appeals for argument and disposition. The awards in question were to Ricky Paul New for injuries sustained in the accident, to Prank and Rita Mae Chalan whose son Prank T. Chalan, Jr. was killed in the accident, and to Marion B. New whose husband Robert P. New was also killed in the accident. The victims were all members of the Wilmore Volunteer Pire Company (Company).

The facts of the accident are not in dispute: On July 11, 1976, the Company held its annual fund raising picnic. As part of the promotional activities, a huge banner advertising the picnic was strung across Pennsylvania Route 53. The banner was suspended by metallic wires anchored to utility poles on each side of the highway.

On July 13, 1976, about 6:00 p.m., Robert P. New requested Prank T. Chalan, Jr., Ricky Paul New and another member, Tony Zapp, to assist him in removing the banner. Aluminum ladders were placed against the poles on each side of the highway. Robert New climbed one ladder assisted by Zapp. Frank [149]*149T. Chalan, Jr. climbed the other ladder which was held by Bicky Paul New. Apparently the wind blew as Frank T. Chalan, Jr. and Bobert New were standing on the ladders, and caused one of the metal wires holding the banner to make contact with high voltage electricity. As a result of receiving a charge of electricity, Frank Chalan, Jr. fell from the ladder onto Bicky Paul New. Bobert New descended his ladder to aid Chalan and Bicky Paul New. In doing so, he also received a charge of electricity.

Bobert P. New and Frank T. Chalan, Jr., as a result of the electrical charge, died of asphyxiation. Bicky Paul New suffered extensive injury.

This action commenced when the claimants filed separate claim petitions against the borough and its carrier in connection with the casualties. After hearings were held in each case, the referee dismissed the claim petitions of the parents and the widow, respectively, on the grounds that decedents Chalan and New were not “employees” within the meaning of Section 601 of The Pennsylvania Workmen’s Compensation Act.1

In the case of claimant Bicky Paul New, the referee found that he was totally and permanently disabled but that he, too, was not an “employee” for workmen’s compensation purposes.

On appeal by the claimants, the Board reversed the referee’s disallowance of benefits in each case. The finding respecting the total disability of Bicky Paul New was affirmed and “additional compensation” was awarded to the parents of decedent Chalan.

Claimant Bicky Paul New thereafter filed a protective appeal to the Board with a request for a rehearing to correct its decision so as to include pay[150]*150ment for medical expenses. By supplemental decision, the Board so corrected its Order.2 The borough of Wilmore and its insurance carrier thereafter perfected timely appeals to this court.

We first consider whether the Board properly concluded that decedents Chalan and New and claimant Ricky Paul New were “employees” within the meaning of Section 601 of the Act while engaged in the removal of the banner. That section sets forth the specific duties which volunteer firemen perform to allow them to be considered employees of the municipality they serve. Pursuant to the section, members of volunteer fire companies are entitled to compensation for injuries received “while actively engaged as firemen” and, additionally, “while performing any other duties of such . . . fire department [s] as authorized by the municipality.”

The casualties here involved occurred in the course of removing the promotional banner from the highway. The removal of the banner was associated with the activities of a fund raising picnic.

The threshold question, then, is whether the removal of the picnic banner was the performance of a “duty.” The Board concluded that the holding of a fund raising picnic and the activities associated with it are traditional and common functions of a volunteer fire company and should be considered a Section 601 duty. We agree, especially where, as the referee found here, the proceeds are used for equipment and training purposes.

The section further requires that the duty be authorized by the municipality. In this regard, the referee found that Ordinance No. 2, passed by the [151]*151Wilmore Council in 1958, authorized members of the volunteer fire department to:

3 ... engage in the performance of any duty authorized by any officer or officers of the Wilmore Fire Department. (Emphasis added.)

Clearly, the ordinance authorizes “any duty” so long as it is performed under authority of an officer of the Department.

It would appear then that the resulting injuries from the accident of July 13, 1976 are compensable, since they occurred while employees of the volunteer fire company were performing a duty authorized by the municipality.

But the petitioners contend that the removal of the banner was not a duty that was expressly authorized by the township, and therefore the resulting casualties are not compensable. They rest their contention on our decision in Workmen’s Compensation Appeal Board v. Mahoning Supervisors, 24 Pa. Commonwealth Ct. 207, 354 A.2d 604 (1976) where we held that the authority passing from the borough to the fire company to perform duties must be express. Implied authority is not enough.

Mahoning, however, is distinguishable from the case at bar. In Mahoning, the fire company provided fire protection at the Mahoning Speedway (where the injury occurred) solely as a matter of tradition and past practice. Unlike Mahoning, the duties of members of the Wilmore Fire Company were performed under authorization of the 1958 ordinance, duly passed by the Wilmore Council.

We adopt the reasoning of the Board that while the duties are not specifically enumerated in the text of the ordinance, that fact does not detract from the grant of express authority from the borough to the fire department. The authority granted by the ordi[152]*152nance is an express grant of authority to engage in “any duty” that is authorized by a company officer. That express grant was broad enough to include the duties associated with the fund raising activities of the company.

Moreover, since that express grant of authority pertained to the performance of any “duty” as opposed to some other activity, we must also reject the petitioners’ contention that the ordinance is a violation of Article III, Section 1 of the Pennsylvania Constitution.3 The authorization by the borough merely permits the volunteer fire company to perform its normal and traditional duties while restricting the permissible source of authorization to the company officers.

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419 A.2d 1383, 54 Pa. Commw. 145, 1980 Pa. Commw. LEXIS 1746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borough-of-wilmore-pennsylvania-national-mutual-casualty-insurance-v-new-pacommwct-1980.