            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rodney Shannon,                                 :
                              Petitioner        :
                                                :
                v.                              :   No. 46 C.D. 2020
                                                :   Submitted: June 5, 2020
Workers’ Compensation Appeal                    :
Board (Ogden Newspapers of                      :
Pennsylvania),                                  :
                      Respondent                :

BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                   FILED: August 25, 2020

               Rodney Shannon (Claimant) petitions for review of the decision of the
Workers’ Compensation Appeal Board (the Board) affirming the workers’
compensation judge’s (WCJ) denial of his claim for Workers’ Compensation (WC)
benefits.    Claimant was engaged in delivery work for the Altoona Mirror, a
newspaper owned by Ogden Newspapers of Pennsylvania (Respondent), when he
was injured in a customer’s icy driveway. Claimant argues that the Board erred in
finding that Claimant was an independent contractor and in denying WC benefits as
a result.1 Discerning no error below, we affirm the Board’s order.



       1
         On appeal to the Board, Claimant’s counsel requested bifurcation of the case and that the
issue of whether the Claimant was an employee be decided before evaluating the medical aspects
of the case. Therefore, this Court considers the issue of WC benefits based on a review of the
Board’s opinion that Claimant was an independent contractor. We do not evaluate medical
evidence in this case.
                                  I.     Background
             Claimant was a delivery person for Respondent when he was injured
on December 17, 2017. Reproduced Record (R.R.) at 1a. Claimant worked for
Respondent during a period of approximately nine years. WCJ Op., 8/24/2018,
Findings of Fact (F.F.) No. 6.a. On an average workday, Claimant would receive
500-600 newspapers at his home between 2:00-3:00 a.m. F.F. No. 6.b. Claimant
traveled approximately 70 miles per day to deliver the papers. Id. Respondent
imposed a 6:00 a.m. deadline by which time Claimant was required to deliver all
papers to customers in 100-150 homes, stores, and newspaper vending machines.
Id. At a hearing before the WCJ, Claimant testified he did not select his own delivery
route, but was instead instructed by Respondent how to travel. F.F. No. 6.j.


             Respondent imposed several requirements on Claimant in addition to
delivery time and manner. See R.R. at 336a-37a. At certain times, Claimant was
required to deliver newspapers to non-customers in the hopes that they would
become customers. F.F. No. 6.c. Respondent provided Claimant with advertising
inserts that he was required to place in the newspapers. F.F. No. 6.h. Respondent
sometimes required that Claimant use holiday-themed advertising bags as delivery
packaging. F.F. No. 6.i. Claimant asserts that he did not have control or discretion
over these requirements. See R.R. at 336a-37a.


             Claimant did not collect money from customers or select customers to
include on his route. F.F. No. 6.d. If customers had complaints or concerns,
Claimant did not handle these interactions, but they were instead directed to
Respondent. See id. One customer complained to Respondent that her paper was
being thrown into her driveway and that it should be delivered to her front porch.



                                          2
F.F. No. 6.k. As a result, Claimant was required to get out of his car and walk on
this customer’s driveway to deliver her newspaper to her front porch. Id.


            On December 17, 2017, Claimant left his vehicle and walked on the
customer’s driveway in order to deliver her newspaper to her front porch as
requested. F.F. No. 6.l. While walking on the driveway, Claimant slipped and fell
on ice, fracturing his ankle. Id. Claimant was hospitalized for 11 days. Id.


            Claimant had previously signed an independent contractor agreement
on November 2, 2016. F.F. No. 16. Claimant had also signed prior identical
agreements in 2014 and 2011. Id. The independent contractor agreement stated that
Claimant was “an independently established business enterprise” and that as an
independent contractor, Claimant understood that he is not entitled to employee
benefits from Respondent, including WC benefits. Id.

      Claimant filed a Claim Petition for WC benefits on February 14, 2018. R.R.
at 1a. Hearings were held on April 10, 2018, May 23, 2018, and June 26, 2018.
Resp’t’s Br. at 3. On August 24, 2018, the WCJ denied the Claim Petition. WCJ
Dec., 08/24/18, at 13. Claimant appealed to the Board and the decision of the WCJ
was subsequently affirmed by the Board on December 16, 2019. Board Op.,
12/16/19, at 10. Claimant now petitions this Court for review.




                                         3
                                      II.     Discussion
              On appeal,2 Claimant argues that the Board erred in affirming the
WCJ’s finding that he was an independent contractor. Claimant asserts that because
Respondent controlled the manner and methods by which its newspapers were
delivered, Claimant was not an independent contractor for WC benefits purposes.
Further, Claimant argues that the present case is distinguishable from applicable
precedent within this area of law.


                            A. Nature of Employment Relationship
              The existence of an employer-employee relationship is a question of
law based on the WCJ’s findings of fact. Southland Cable Co. v. Workmen’s Comp.
Appeal Bd. (Emmett), 598 A.2d 329, 330 (Pa. Cmwlth. 1991). “[I]n order to qualify
for [WC] benefits, a claimant has the burden of establishing that an employment
relationship existed at the time of the injury and that the injury was related to the
employment. Johnson v. Workmen’s Compensation Appeal Board (DuBois Courier
Express), 631 A.2d 693, 695 (Pa. Cmwlth. 1993). In a worker’s compensation case,
the WCJ is the sole arbiter of fact. Bethenergy Mines, Inc. v. Workmen’s Comp.
Appeal Bd. (Skirpan), 612 A.2d 434 (Pa. 1992). The findings of the WCJ can only
be disturbed if there is no competent evidence to support the findings. Universal
Cyclops Steel Corp. v. Workmen’s Comp. Appeal Bd. (Krawczynski), 305 A.2d 757
(Pa. Cmwlth. 1973).




       2
         Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d 1037
(Pa. Cmwlth. 2011).

                                              4
             Pennsylvania does not have a “hard and fast rule” that governs the
distinction between an employer-employee relationship and an owner-independent
contractor relationship. Hammermill Paper Co. v. Rust Eng’g Co., 243 A.2d 389,
392 (Pa. 1968). However, certain guidelines and factors have been established to
consider the nature of these relationships, including:
             Control of manner [of] work . . . to be done; responsibility for
             result only; terms of agreement between the parties; the nature of
             the work or occupation; skill required for performance; whether
             one is engaged in a distinct occupation or business; which party
             supplied the tools; whether payment is by the time or by the job;
             whether work is part of the regular business of the employer; and
             also the right to terminate the employment at any time.

Id. (quoting Stepp v. Renn, 135 A.2d 794, 796 (Pa. Super. 1957)). “[W]hile each
factor is relevant, there are certain guidelines that have been elevated to be dominant
considerations. . . . [C]ontrol over the work to be completed and the manner in which
it is to be performed are the primary factors in determining employee status.”
Universal Am-Can, Ltd. v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d 328,
333 (Pa. 2000) (citing JFC Temps, Inc. v. Workmen’s Comp. Appeal Bd. (Lindsay
and G & B Packing), 680 A.2d 862 (Pa. 1996)).


             Claimant asserts that Respondent controlled the manner and methods
by which he was required to deliver newspapers. Claimant cites several examples,
including time of delivery, delivery route, and means of delivery. Claimant’s Br. at
8-10. Given the length of the route, 70 miles, and Respondent’s requirement that
the newspapers be delivered by 6:00 a.m. on weekdays and 7:00 a.m. on weekends,
Claimant asserts that a motorized vehicle was “the only means of accomplishing the
route” even though it was not explicitly required by Respondent. Id. at 10.




                                          5
             In his decision, the WCJ found 11 factors suggesting that Claimant had
entered into an independent contractor relationship with Respondent. R.R. at 363a.
Specifically, the WCJ cited testimony from Mr. Robert Killinger (Killinger), the
District Manager for the Altoona Mirror. Killinger stated that he would sometimes
not see Claimant for months. F.F. No. 26.j. In his opinion, the WCJ stated, “This
indicates that there was not a degree of supervision that one normally sees in an
employment relationship and is more akin to the standard independent contractor
relationship.” Id.


             Additionally, the WCJ found that while Claimant was shown the
quickest delivery route by Killinger via an audio CD, Claimant was free to use his
own route. F.F. No. 26.h. Claimant was also required to supply his own vehicle for
use in the deliveries, and he was not reimbursed for mileage or use of the vehicle.
F.F. No. 26.f. The WCJ stated, “[e]mployees are generally reimbursed for use of
their privately-owned vehicles for activities in furtherance of the [Respondent]’s
business.” Id.


             Upon its review, the Board held that “[t]he controlling case in this
matter[,] as discussed by the WCJ, is Johnson v. W[orkmen’s Compensation Appeal
Board] (DuBois Courier Express), 631 A.2d 693 (Pa. Cmwlth. 1993).” Board Op.,
12/16/2019, at 7. In the present appeal before this Court, Claimant argues that his
case is distinguishable from applicable precedent, specifically Johnson. Claimant’s
Br. at 11. However, Claimant admits that “Pennsylvania courts have . . . traditionally
held that newspaper carriers or ‘newsboys’ were independent contractors rather than
employees.” Id. at 12.




                                          6
             In Johnson, this Court held that a 13-year-old newspaper carrier was an
independent contractor because the newspaper did not exercise substantial control
over his activities. Johnson, 631 A.2d at 702. As with Claimant in the present case,
in Johnson, the newspaper carrier “was only told to deliver the papers by [a specific
time], so that customers received ‘news’ rather than ‘history,’ but he was never
directed otherwise as to the time or mode of delivery or the route traveled.” Id. at
697. The newspaper carrier was not required to use particular transportation to
complete his route, and following the drop-off point of the newspapers, the
newspaper had no further investigation or supervision regarding the delivery of the
papers. Id. The newspaper carrier was also eligible to deliver competing newspapers
and was permitted to substitute a person to deliver his papers without giving the
newspaper notice or receiving prior approval. Id. at 697-98. The WCJ found that
the present Claimant also enjoyed the opportunities for unrestricted substitutions and
additional delivery routes for competing publications. F.F. No. 26.i; R.R. at 88a.


             Claimant asks that this Court consider the “erosion of ‘newsboy’
independence that has occurred since the . . . Johnson cas[e] w[as] decided.”
Claimant’s Br. at 15. However, this consideration does not fall within our scope of
review. See Clippinger, 38 A.3d 1037. As the Board appropriately identified
Johnson as the controlling case law within this context and analyzed Claimant’s case
accordingly, the Board did not commit an error of law in affirming the WCJ’s
decision that Claimant was an independent contractor for WC benefits purposes.


                 B. Distinguishability of Additional Applicable Case Law
             In addition to Johnson, Claimant cites Balinski v. Press Publishing Co.,
179 A. 897 (Pa. Super. 1935), and Rodgers v. P-G Publishing Co., 166 A.2d 544
(Pa. Super. 1960), as examples of applicable case law that are distinguishable from

                                          7
Claimant’s present case. In both cases, the newspaper distributors in question
purchased the newspapers from the publishing company, and upon making sales to
customers, kept the profits. See Balinski, Rodgers. These newspaper distributors
were found to be independent contractors.


               Claimant attempts to draw a distinction between himself and the
subjects of these cases to assert that he was not an independent contractor. While
we acknowledge that Claimant did not deliver papers under a model of personally
purchasing newspapers from Respondent, this fact is not dispositive. Although
Claimant urges this Court to consider the evolving nature of the newspaper delivery
business in rendering our decision, this Court has recently held that a newspaper
carrier is an independent contractor where the facts showed the newspaper’s lack of
control over the work or the manner in which it was completed. See Gallagher v.
Workers’ Comp. Appeal Bd. (Trib Total Media, Inc.), (Pa. Cmwlth., No. 1087 C.D.
2014, filed February, 17, 2015), 2015 Unpub. LEXIS 111.3


               In Gallagher, this Court “noted two facts in particular indicated [a] lack
of control”: the lack of prohibition on delivering competing newspapers and the
ability to enlist a substitute without prior notice or permission. Gallagher, slip op.
at 6, 2015 LEXIS at *7 (citing Johnson, 631 A.2d at 697-698). Claimant, in the
present case, is similar to the carrier in Gallagher in both these regards. This
supports the conclusion that Respondent did not control either Claimant’s work or
the manner of his performance, only the result. Id. Therefore, Claimant’s case is




       3
         This case is cited for its persuasive value in accordance with Section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).


                                                  8
also not distinguishable from a modern understanding of newspaper delivery by this
Court.


                                 III.   Conclusion
            The Board did not err in affirming the decision of the WCJ that
Claimant was not an employee of Respondent for WC benefits purposes. The record
supports the WCJ’s finding that Respondent’s lack of control over Claimant’s
newspaper delivery constituted an independent contractor relationship. For the
foregoing reasons, we affirm the Board’s order.




                                            ______________________________
                                            J. ANDREW CROMPTON, Judge




                                        9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rodney Shannon,                       :
                       Petitioner     :
                                      :
            v.                        :   No. 46 C.D. 2020
                                      :
Workers' Compensation Appeal          :
Board (Ogden Newspapers of            :
Pennsylvania),                        :
                       Respondent     :

                                    ORDER

           AND NOW, this 25th day of August 2020, we AFFIRM the order of

the Workers’ Compensation Appeal Board.




                                          ______________________________
                                          J. ANDREW CROMPTON, Judge
