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

Dissenting Opinion by

Judge Menceb.:

I respectfully dissent. Although it would be impossible not to feel immeasurable sympathy for the victims of this tragedy, I am of the view that this case is controlled by our decision in Workmen’s Compensation Appeal Board v. Mahoning Supervisors, 24 Pa. Commonwealth Ct. 207, 354 A.2d 604 (1976).

In Mahoning, this Court held that “the Township cannot be said to have authorized the fire company’s activity and thereby to have become the statutory employer of the claimant for purposes of workmen’s compensation, unless that authorisation was expressly given.” Id. at 214, 354 A.2d at 608 (emphasis in original).

Here, the Workmen’s Compensation Appeal Board concluded that authorization was expressly given because the Council authorized members of the depart*162ment to “engage in the performance of any duty authorized by any officer ... of the Wilmore Fire Department.” (Emphasis added.) I am not of the view that this general authorization to perform duties can be construed to be an express authorization to participate in the activities of a fund raising picnic.