Opinion
No. 366 C.D. 2014
09-05-2014
Luzerne County Board of Elections, Petitioner v. Workers' Compensation Appeal Board (Heffner), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
The Luzerne County Board of Elections petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) granting Kathryn Heffner's (Claimant) claim for benefits under the Workers' Compensation Act (Act). In doing so, the Board affirmed the WCJ's determination that Claimant was an employee of the Board of Elections at the time of injury. We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
Claimant has worked as a poll worker in Luzerne County in every primary and general election for more than ten years. Just before the November 4, 2008, general election, the County's Judge of Elections unexpectedly tendered his resignation. Claimant was appointed Judge of Elections for the election and was subsequently elected to that position for a term of four years beginning Monday, January 5, 2009. Claimant's duties include setting up the polling site and voting machines, overseeing operations at the polling site and assisting voters as needed. As Judge of Elections, Claimant receives $150 in compensation plus $14 in mileage reimbursement for transporting the election returns from the polling place to the county court house. See Section 412.2 of the Pennsylvania Election Code, 25 P.S. §2682.2 (setting compensation of district election officers).
Act of June 3, 1937, P.L. 1333, added by the Act of December 9, 2002, P.L. 1246, as amended, 25 P.S. §2682.2.
On November 4, 2008, Claimant injured the little finger on her right hand when it got caught between the screen and frame of a voting machine. Claimant was taken by ambulance to Wilkes-Barre General Hospital where she underwent surgery to suture the finger. Dr. James M. Mattucci, a board-certified orthopedic surgeon, began treating Claimant's finger on November 4, 2008. Claimant reported the injury to Leonard Piazza, the County's Director of Elections, and corresponded with him by email about her medical bills. Claimant did not submit copies of these bills to Piazza.
Claimant filed a claim petition on February 27, 2010, seeking compensation for her medical bills and counsel fees. Claimant's claim petition was initially denied by the WCJ, who concluded she was not an employee of the Board of Elections when she injured her finger on November 4, 2008. The WCJ reasoned that elected officers of the Commonwealth and its political subdivisions are excluded from the definition of an "employe" under Section 104 of the Act, 77 P.S. §22. Claimant appealed to the Board. The Board reversed, holding that the WCJ erred in determining that Claimant was not an employee of the Board of Elections. The Board explained that at the time of injury, Claimant was an appointed, not an elected, official; therefore, she did not fall within the express exclusion in Section 104 of the Act. On remand, the WCJ granted the claim petition without additional hearings after concluding that Claimant proved that she suffered a work-related injury. The Board of Elections appealed, again arguing that Claimant was not its employee at the time of her injury. The Board rejected the Board of Elections' argument because the issue had already been decided in its previous opinion. The Board of Elections now petitions for this Court's review of the Board's order granting Claimant's claim petition.
Section 104 of the Act states, in relevant part, as follows:
The term "employe," as used in this act is declared to be synonymous with servant, and includes -77 P.S. §22 (emphasis added).
All 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[.]... Except as hereinafter provided in clause (c) of section 302 and sections 305 and 321, every executive officer of a corporation elected or appointed in accordance with the charter and by-laws of the corporation, except elected officers of the Commonwealth or any of its political subdivisions, shall be an employe of the corporation.
On appeal, the sole issue is whether the Board erred in holding that Claimant was an employee of the Board of Elections at the time of injury. The Board of Elections argues that Claimant's employment, if any, was casual in character; that Claimant was a volunteer and, therefore, not eligible for workers' compensation; and that the treatment of Claimant's stipend under the Pennsylvania Tax Reform Code indicates that she was not an employee.
This Court's review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003).
Claimant has opted not to file a brief on appeal.
In a claim petition, the claimant bears the burden of proving all necessary elements to establish that he is entitled to an award. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). Among the elements the claimant must prove is that an employment relationship existed at the time of injury. Northern Central Bank & Trust Co. v. Workmen's Compensation Appeal Board (Kontz), 489 A.2d 274, 276 (Pa. Cmwlth. 1985). Whether an employment relationship exists is a question of law reviewable by this court on a case by case basis. Sunset Golf Course v. Workmen's Compensation Appeal Board (Department of Public Welfare), 595 A.2d 213, 216 (Pa. Cmwlth. 1991). "Employe" is defined in Section 104 of the Act "to be synonymous with servant" and 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." 77 P.S. §22.
The Board of Elections first argues that Claimant was not an "employe" under Section 104 of the Act because her employment was "casual in character and not in the regular course of business of the employer." 77 P.S. §22. We disagree.
Our Supreme Court has defined "casual" employment as "work that 'comes about by chance, fortuitously, and for no fixed duration of time.'" Brookhaven Baptist Church v. Workers' Compensation Appeal Board (Halvorson), 912 A.2d 770, 777 (Pa. 2006) (quoting Blake v. Wilson, 112 A. 126, 129 (Pa. 1920)). See also Martin v. Recker, 552 A.2d 668, 672 (Pa. Super. 1988) ("The term casual denotes a fortuitous happening, an irregular occurrence which is occasional, incidental, temporary, haphazard, unplanned and with no fixed duration of time."). Although Claimant's work for the Board of Elections may be described as occasional and temporary, it does not occur by chance or fortuitously. It occurs for a fixed duration of time that corresponds with primary and general elections in the Commonwealth. That the work is occasional and temporary is attributable to the seasonal nature of elections. Moreover, Section 302 of the Pennsylvania Election Code, 25 P.S. §2642, which sets forth the powers and duties of county boards of elections, establishes that conducting elections is within the regular course of business for the Board of Elections. Accordingly, we hold that the casual employment exception in Section 104 of the Act is not applicable to Claimant.
In summary, Section 302 of the Pennsylvania Election Code states that a county board of elections must select and equip polling places; purchase, preserve, store and maintain primary and election equipment, including voting booths, ballot boxes and voting machines; appoint employees, voting machine custodians, and machine inspectors; issue certificates of appointment to watchers at primaries and elections; issue such rules, regulations and instructions necessary for the guidance of voting machine custodians, elections officers and electors; instruct election officers in their duties; inspect the conduct of primaries and elections; prepare and publish all notices and advertisements in connection with the conduct of primaries and elections; investigate election frauds and irregularities; receive and determine the sufficiency of nomination petitions, certificates and papers of candidates; receive from district election officers the returns of all primaries and elections; and certify the results of elections and primaries to the Secretary of the Commonwealth. 25 P.S. §2642.
The Board of Elections next argues that Claimant was a volunteer on November 8, 2008, and not among the types of volunteers expressly designated as "employes" by Section 601 of the Act, 77 P.S. §1031. We disagree with the Board of Elections' premise that Claimant was a "volunteer" rather than an employee.
Section 601 was added by the Act of December 5, 1974, P.L. 782. It includes within the Act's definition of "employe" volunteer firefighters, volunteer ambulance corpsmen, volunteer rescue and lifesaving squad members, volunteer members of the State Parks and Forest Program and volunteer members of hazardous materials response teams.
As noted, Section 104 of the Act defines an "employe" as "synonymous with servant, and includes ... [a]ll natural persons who perform services for another for a valuable consideration." 77 P.S. §22 (emphasis added). Thus, it follows that a volunteer does not receive valuable consideration for her services. English v. Lehigh County Authority, 428 A.2d 1343, 1353 (Pa. Super. 1981). Determining whether Claimant was a "volunteer" or an "employee" at the time of injury hinges on whether she performed her services for the Board of Elections for valuable consideration.
The Board of Elections argues that the daily $150 stipend paid to Claimant was a nominal gratuity rather than valuable consideration. The Board cites Wolf v. Workers' Compensation Appeal Board (County of Berks/Office of the Aging), 705 A.2d 483 (Pa. Cmwlth. 1997), in support of its assertion. In Wolf, the claimant was a foster grandparent in a county day care for disadvantaged children. She worked 20 hours per week and received an hourly non-taxable stipend of $2.35 per hour plus cash assistance with her transportation and meal costs. The claimant sustained an injury at the day care and filed for workers' compensation. In reversing the grant of benefits, this Court held that the claimant was not a statutory employee. We characterized the claimant's remuneration as follows:
This cost assistance is simply a nominal gratuity afforded to low-income foster grandparents by the [Domestic Volunteer Service Act of 1973] so that serving in the program is of no expense to the volunteer. In contrast to the traditional employer/employee relationship, where an employer pays wages to an employee for services performed, the stipend is afforded so as to unburden low-income persons. It allows the foster grandparents to help exceptional children without having to be concerned about financial constraints.Wolf, 705 A.2d at 485. The court in Wolf adopted the legal reasoning of Marcus v. Frankford Hospital, 283 A.2d 69 (Pa. 1971), which held that free meals provided to an American Red Cross volunteer during two days of orientation and training were nominal gratuities rather than valuable consideration. The court in Marcus noted that "[a]s a matter of common sense Miss Marcus' status as a volunteer aid, a characterization which appellant accepts, would seem to belie the contention that she was an employee performing services for valuable consideration." Id. at 72.
Under the Domestic Volunteer Service Act, volunteer foster grandparents may receive a stipend but it is not required. See 42 U.S.C. §5011(d) ("The Director, in accordance with regulations the Director shall prescribe, may provide to low-income persons serving as volunteers ... such allowances, stipends, and other support as the Director determines are necessary to carry out the purpose of this part.") (emphasis added).
The present case is distinguishable from Wolf and Marcus. In both of those cases, the compensation was provided gratuitously, not because it was mandatory for the alleged employer to do so. Additionally, the compensation in both cases was nominal. Neither the $2.35 per hour stipend paid to the claimant in Wolf nor the free lunch provided to the claimant in Marcus was of sufficient value to motivate the claimant's participation.
By contrast, the compensation of a judge of elections is fixed by statute. Section 412.2 of the Pennsylvania Election Code requires a county board of elections to pay a judge of elections a minimum of $75 per day and a maximum of $200 per day, plus $20 for transmitting election returns and ballot boxes. 25 P.S. §2682.2(a), (d). This results in total compensation of $95 to $220 per election day. Assuming that a judge of elections works a 15-hour day, the statutory compensation ranges from $6.33 to $14.67 per hour. Using this methodology, Claimant earns $11.33 per hour if she receives the extra $20 and $10.00 per hour if she does not. In either case, we hold that her level of compensation, which is well above the federal minimum wage of $7.25 per hour, is more than nominal. It is sufficient compensation to incentivize an individual to serve as a judge of elections.
If the judge of elections personally transports the returns and ballot boxes to the court house, she is entitled to 35 cents per circular mile from the polling place to the court house. Section 412.2(f) of the Pennsylvania Election Code, 25 P.S. §2682.2(f). Section 412.2 was added by the Act of December 9, 2002, P.L. 1246.
We take judicial notice that the polls open at 7:00 a.m. and close at 8:00 p.m. in Pennsylvania. Our hypothetical work day includes an additional two hours for setting up and dismantling the polling place and transporting election returns and ballot boxes to the county court house.
Because we conclude that Claimant was not a volunteer, we need not address the Board of Elections' argument that she was not among the types of volunteers designated as statutory employees by Section 601 of the Act, 77 P.S. §1031. See n.7, supra. We also reject as meritless the Board of Elections' suggestion that Claimant admitted she was a volunteer. Specifically, the Board cites Claimant's statement that "I guess I basically volunteered" in response to an inquiry about how she became Judge of Elections on the date of her injury. R.R. 26a. Read in context, it is apparent that Claimant meant she contacted the Board of Elections to express her interest in being appointed Judge of Elections when she learned of the vacancy in the position. The WCJ's finding of fact that "Claimant called the Court House, and offered to be Judge of Elections for the November 4, 2008, general election" supports this interpretation.
Finally, the Board of Elections argues that Claimant was not its employee because Section 412.2(i) of the Pennsylvania Election Code states that her compensation as an election official is not taxable as income. The Board cites Wolf, 705 A.2d 483, in support of its position, since that case involved a non-taxable stipend of $2.35 per hour which this Court held was a nominal gratuity rather than valuable consideration. The Board overstates the importance of the taxability of compensation in determining whether the recipient is a statutory employee under the Act. The fact that the claimant's stipend was non-taxable was not relevant to the outcome in Wolf. See also Schreckengost v. Gospel Tabernacle, 149 A.2d 542 (Pa. Super. 1959) (member of church became its employee by earning valuable consideration in the form of payment of his tithes in exchange for helping with construction of church). Similarly, here, the fact that Claimant's compensation was not taxable as personal income does not change her status as the Board of Elections' employee when she sustained a work-related injury on November 4, 2008.
It states:
Compensation and other payments received by election officials pursuant to this section shall not be deemed income classified and categorized under section 303 of the act of March 4, 1971 (P.L. 6, No. 2), known as the "Tax Reform Code of 1971."25 P.S. §2682.2(i). Section 412.2 was added by the Act of December 9, 2002, P.L. 1246. --------
For all of the reasons discussed above, we affirm the order of the Board.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 5th day of September, 2014, the order of the Workers' Compensation Appeal Board, dated February 20, 2014, is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge