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NEWMAN v. CONGREGATION MERCY AND TRUTH. (11/16/61)

November 16, 1961

NEWMAN, APPELLANT,
v.
CONGREGATION OF MERCY AND TRUTH.



Appeal, No. 80, Oct. T., 1961, from order of Court of Common Pleas of Montgomery County, Feb. T., 1960, No. 364, in case of Bertha Newman v. Congregation of Mercy and Truth et al. Order affirmed.

COUNSEL

Sydney Finkelstein, for appellant.

Richard D. Harburg, with him Herbert A. Barton, and Swartz, Campbell & Henry, for appellees.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 196 Pa. Super. Page 351]

OPINION BY WRIGHT, J.

This is a workmen's compensation case in which the Board disallowed benefits on the ground that claimant's decedent "did not sustain an accident within the course of his employment". Upon appeal to the Court of Common Pleas of Montgomery County, claimant's exceptions were dismissed and the decision of the Board was affirmed. This appeal by claimant followed.

[ 196 Pa. Super. Page 352]

The record discloses that Frank Newman, claimant's husband, was employed as a cantor and teacher by the Congregation of Mercy and Truth, High and Warren Streets, Pottstown, Pennsylvania. Newman resided at 554 High Street, which is directly opposite the synagogue. At 8:00 p.m. on Friday, November 8, 1957, a rainy evening, Newman started to walk from his home to the synagogue. The Jewish Sabbath had commenced at sundown and Newman was to chant the evening prayers. While crossing High Street, Newman was struck by an automobile and sustained multiple injuries, as a result of which he died two days later. The Congregation of Mercy and Truth is an Orthodox Congregation, and a condition of Newman's employment was that the live the life of an Orthodox Jew. One of the requirements of such a life is that, on the Sabbath, vehicles should not be used for transportation. It is this circumstance primarily which gives rise to the present appeal.

The rationale of the Board's decision, adopted by the court below, was that Newman was on his way to work and had not yet reached the premises of his employer. Appellant contends (1) that her husband's employment required him to walk to the synagogue on the Sabbath; (2) that his duties were not limited solely to services within the synagogue; (3) that observance of the life of an Orthodox Jew forbade him to use vehicles for transportation on the Sabbath; and (4) that walking to work on the Sabbath was actually furthering the interests of his employer. These four contentions may be consolidated and resolved into the basic question, namely, was appellant's husband in the course of his employment at the time of the fatal accident?

Whether the decedent was in the course of his employment when fatally injured is a question of law to be determined on the basis of the facts: Wolfingbarger v. Addressograph-Multigraph Corp., 188 Pa. Superior Ct. 136,

[ 196 Pa. Super. Page 353146]

A.2d 309. In resolving that issue, there is no formula which may be applied to all cases: Rybitski v. Lebowitz, 175 Pa. Superior Ct. 265, 104 A.2d 161. Where the injury occurs off the premises of the employer, compensation may not be awarded unless the employe was actually furthering the employer's business Anetakis v. Salvation Army, 191 Pa. Superior Ct. 268, 156 A.2d 590. The burden to establish such fact is upon the claimant; Smith v. Frederick Investment Co., 152 Pa. Superior Ct. 534, 33 A.2d 510. As a general rule, an employe who is injured on his way to work, and before reaching the premises of the employer, cannot recover compensation: Giallonardo v. St. Joseph's College, 177 Pa. Superior Ct. 87, 111 A.2d 178. This general rule is subject to an exception if the contract of employment ...


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