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VINCENT GIALLONARDO v. ST. JOSEPHS COLLEGE AND INDEMNITY INSURANCE COMPANY NORTH AMERICA (01/14/55)

January 14, 1955

VINCENT GIALLONARDO, APPELLANT,
v.
ST. JOSEPHS COLLEGE AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, INSURANCE CARRIER



Appeal, No. 88, Oct. T., 1953, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1951, No. 6484, in case of Vincent Giallonardo v. St. Joseph's College and Indemnity Insurance Company of North America. Judgment affirmed.

COUNSEL

David L. Ullman, Philadelphia, for appellant.

Joseph J. Murphy, with him John A. Friedrich and Krusen, Evans & Shaw, Philadelphia, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside and Ervin, JJ. (ross, J., absent).

Author: Wright

[ 177 Pa. Super. Page 88]

OPINION BY WRIGHT, J.,

Vincent Giallonardo was employed as a janitor by St. Joseph's College, which is located at 54th Street and Overbrook Avenue in the City of Philadelphia. While Giallonardo was on his way to work one morning, he alighted from a trolley car at the corner, crossed to the sidewalk, slipped on some ice and fell, breaking his right leg. Referee Clayton denied compensation based upon his conclusion that: "At the time of the accidental injury resulting in the disability, the plaintiff had not yet entered the premises of the defendant nor reported for duty on that particular day". The Workmen's Compensation Board sustained Giallonardo's appeal based upon the following substituted finding of fact: "2. On February 23, 1950, while plaintiff was on his way to report to work, plaintiff entered upon the premises of the defendant herein, at which time he slipped on some ice and fell, as a result of which he sustained a fracture of the right leg (italics supplied)". Upon appeal to the Court of Common Pleas exceptions to the Board's decision were sustained, and judgment was entered for the defendants. This appeal followed.

[ 177 Pa. Super. Page 89]

The controlling question is whether or not appellant was on the premises of his employer at the time he slipped and fell. There is curbing at the edge of the street. The pavement for pedestrians is of concrete construction five feet wide. Between the curbing and the pavement there is a plot of grass approximately eight feet wide. For a short distance on either side of the corner, this plot is paved also. Beyond the pavement is another plot of grass extending to a hedge surrounding the college grounds. We must of course view the testimony in the light most favorable to appellant, and he must be given the benefit of every inference reasonably deducible therefrom: Lemmon v. Pennsylvania Department of Highways, 164 Pa. Superior Ct. 254, 63 A.2d 684; Darmopray v. Budd Manufacturing Co., 169 Pa. Superior Ct. 200, 82 A.2d 341. However, viewed in this light, the testimony does not support the Board's finding that appellant had entered upon the premises of his employer.

Appellant testified on direct examination: "Q. In the morning? A. In the morning, seven o'clock, pretty near close to job, I got my feet on top of property, about three, four feet you know in the corner - that's in the property... Q. Where were you when you fell? A. I fall on pavement St. Joe's - half on the pavement and half on the grounds of St. Joe's College". And on cross examination: "Q. You walked across the street to the college grounds? A. Yes, walk across street. Q. And got on the sidewalk? A. Yes. Q. And then you fell? A. Walk about two feet, fall down St. Joe's College property. Q. About two feet in - A. About three feet, don't measure. Q. Now, you stepped off the street on to the sidewalk, didn't you? A. Yes. Q. And you got about two feet from the curb, didn't you? A. About three feet I think, I don't know. Q. And then you fell? A. Yes. Q. Right there on the sidewalk? A. Yes." Officer

[ 177 Pa. Super. Page 90]

Trifiletti testified: "Q. What did you find? A. We found Mr. Vincent Giallonardo lying prone on the sidewalk... Q. Inside the curb on the sidewalk? A. Yes. Q. How far in, as to the cement pavement? A. We got him near the corner here. Q. Indicating - A. He wasn't too far from the curbing. I would say about a couple of foot from the curbing, as far as I can remember". Officer Monahan testified: "Q. Mr. Monahan, will you show us on those pictures just where you picked up Mr. Giallonardo? A. Where the exact spot would be - this is the cement sidewalk, it was positively on the cement sidewalk... Q. I'm not asking you to say the exact spot. Here we have - A. He was on this cement; whether that is on Overbrook Avenue or 54th Street I couldn't say. Q. But on the sidewalk? A. On the sidewalk, not on the street. Definitely on the pavement".

Section 301 (c) of The Pennsylvania Workmen's Compensation Act*fn1 provides that "The term 'injury by an accident in the course of his employment,' as used in this article,... shall include all injuries caused by the condition of the premises or by the operation of the employer's business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer's business or affairs are being carried on, the employe's presence thereon being required by the nature of his employment". A claimant has the burden of proving by a preponderance of the evidence all the ...


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