Herman v. Kandrat Coal Co.

• Decision Date: 18 March 1965
• Citation: 208 A.2d 51,205 Pa.Super. 117
• Parties: Helen HERMAN, Claimant-Appellant, v. KANDRAT COAL COMPANY and Commonwealth of Pennsylvania, Defendants-Appellees.
• Court: Pennsylvania Superior Court

208 A.2d 51

205 Pa.Super. 117

Helen HERMAN, Claimant-Appellant, v. KANDRAT COAL COMPANY and Commonwealth of Pennsylvania,

Defendants-Appellees.

Superior Court of Pennsylvania.

March 18, 1965.

David S. Shrager, Donald J. Farage Philadelphia, William J. Krencewicz, Shenandoah, for appellant.

Howard G. Stutzman, Pottsville, for Kandrat Coal Co. appellee.

Arthur E. Ricchiuti, Special Asst. Atty. Gen., Clyde M. Hughes, Jr. Asst. Atty Gen., Walter E. Alessandroni, Atty. Gen., Harrisburg, for the Commonwealth.

Before ERVIN, Acting P. J., and WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.

WATKINS, Judge.

The Court of Common Pleas of Schuylkill County affirmed the decision of the Workmen's Compensation Board, in an occupational disease claim, which denied benefits to the claimant-appellant, Helen Herman, widow, on the ground that the decedent, Carl Herman, was not an employee under the Act.

This claim arose under the Pennsylvania Occupational Disease Act of 1939, P.L. 566, as amended, 77 P.S. § 1201. The claimant's husband, Carl Herman, died on April 17, 1957 as a result of anthraco-silicosis. The Referee on March 13, 1963 awarded benefits. On appeal, the Board reversed the Referee on March 19, 1964 and denied benefits on the ground that there was no employer-employee relationship. The court below affirmed and this appeal followed.

The decedent was employed in the anthracite mines from 1912 until April 27, 1956. He was disabled as a result of anthraco-silicosis and died on April 17, 1957. The Board found as a fact that his last exposure to a silicate hazard was by virtue of work performed in and about the mine of the defendant, K. & H. Coal Co., from December 1950, until April 27, 1956.

The K. & H. Coal Co., was a mining venture entered into by the decedent and Victor Kandratavich and the Board found that '* * * the decedent was a partner in the mining venture operating as K. & H. Coal Company, with Victor Kandratavich.' And the Board concluded that '* * * since decedent was a partner in the firm of K. & H. Coal Co., his dependent widow is not entitled to benefits under the Occupational Disease Act.'

As the decision of the Board is against the claimant, the question before the reviewing court is whether there was a capricious disregard of competent evidence and whether the findings and conclusions are consistent. Fox v. American News Co., 190 Pa.Super. 74, 151 A.2d 670 (1959).

We agree with the court below that the findings are consistent; that the Board did not disregard competent evidence and there was ample competent evidence from which to find that the decedent was a partner and not an employee. As the court below indicated: 'The testimony taken was mainly that of the alleged co-partner in the mining operation. His testimony certainly substantiated the fact that the deceased was a partner and not an employee. He testified that the deceased received a share of the profit and that the share varied according to the amount of profit realized. The testimony further establishes that the deceased was not included on the partnership payroll as an employee nor did the partnership withhold income tax from the deceased's pay. The partnership did not carry compensation insurance on the deceased nor did it pay social security for the deceased. The defendant offered into evidence several exhibits which tend to substantiate the conclusion that the deceased was a partner in the K. & H. Coal Company. We must assume that the Board examined the partnership tax returns, correspondence with the Bureau of Mines, and compensation insurance premium notices offered into evidence by the defendant.'

The appellant further contends that even if the findings and conclusions of the Board are consistent and proper in determining that the decedent was a partner, that a liberal interpretation of the Workmen's Compensation Law makes it possible to be both a partner and an employee under certain circumstances, so that the Board and the court below committed an error of law. The law is to the contrary in Pennsylvania and although the practise in independent mining in the anthracite area of Pennsylvania does create some rather bizarre partnership situations, any remedy, if needed, must come from the legislature.

The term 'employee' as used in the Occupational Disease Act supra, 77 P.S. § 1204, is synonymous with 'servant' and the definition contained in § 104 of the Workmen's Compensation Act, 77 P.S. § 22 also holds...