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DISIMONE v. BEAM. (11/13/56)

November 13, 1956

DISIMONE, APPELLANT,
v.
BEAM.



Appeal, No. 114, April T., 1956, from judgment of Court of Common Pleas of Somerset County, 1955, No. 1063, in case of Caroline DiSimone, mother of Peter Mario DiSimone, dec'd. v. Beam's Attractions (Merle A. Beam) et al. Judgment affirmed.

COUNSEL

Alexander F. Barbieri, with him Harry B. Hogemyer, for appellant.

Penrose Hertzler, for appellee.

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

Author: Wright

[ 182 Pa. Super. Page 276]

OPINION BY WRIGHT, J.

This is a workmen's compensation case in which Caroline DiSimone, mother of Peter Mario DiSimone, deceased, seeks compensation for herself and six of her children as alleged dependents of the decedent, who was fatally injured at Gaithersburg, Maryland, while in the employ of Merle A. Beam, the operator of a carnival known as Beam's Attractions. The Referee made an award which was affirmed by the Board. Upon defendant's appeal from that order, the lower court concluded as a matter of law that the finding of fact that decedent was a Pennsylvania employe within the exception of Section 101 of the Act*fn1 was not supported by the evidence. Judgment was accordingly entered for the defendant. This appeal by claimant followed.

On July 18, 1952, the decedent, a resident of New Jersey, was hired to work as a general man-about-concessions in appellee's carnival. The conversation resulting in decedent's employment took place at appellee's residence in Windber, Pennsylvania. On the day decedent was hired the carnival was playing at South Fork, a town in Pennsylvania near Windber. Appellee informed decedent that the carnival would remain at South Fork for three days and was then scheduled to go outside of Pennsylvania. The itinerary for the weeks immediately ensuing was explained to decedent, and included, in order, Winchester, Fredericksburg, and Petersburg, Virginia, and Ellicott City and Gaithersburg,

[ 182 Pa. Super. Page 277]

Maryland. Decedent was first assigned to work as a counter man at the Bingo game. On August 13, because his work was unsatisfactory, decedent was relieved of his duties at the Bingo game and was assigned to work as a laborer on the "Spitfire". While assisting in the erection of this ride, he was crushed by a truck.

Section 101 of the Act provides in pertinent part that it "shall not apply to any accident occurring outside of the Commonwealth ... except accidents occurring to Pennsylvania employes whose duties require them to go temporarily beyond the territorial limits of the Commonwealth, not over ninety days, when such employes are performing services for employers whose place of business is within the Commonwealth". The legislative history of Section 101 is accurately set forth in the following excerpt from the well considered opinion of Judge LANSBERRY:

"As originally enacted, the Workmen's Compensation Act of 1915 applied only to accidents occurring within the Commonwealth of Pennsylvania and specifically provided it should not apply to accidents occurring outside of the Commonwealth: 1915, P.L. 736, Sec. 101 (77 P.S. 1). By the amendment of 1929, P.L. 829, Sec. 1, the Act was extended to State employes outside of the Commonwealth engaged in the duly authorized business of the State. By a later amendment at the same session of the Legislature, 1929, P.L. 853, Sec. 1, the Act was extended to accidents 'occurring to Pennsylvania employes whose duties require them to go temporarily beyond the territorial limits of the Commonwealth, not over ninety days, when such employes are performing services for ...


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