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OBRZUT v. OLYPHANT BOROUGH. (03/19/63)

March 19, 1963

OBRZUT, APPELLANT,
v.
OLYPHANT BOROUGH.



Appeal, No. 34, Feb. T., 1963, from order of Court of Common Pleas of Lackawanna County, Sept. T., 1962, No. 527, in case of Blanche A. Obrzut, widow of Joseph G. Obrzut, deceased, v. Borough of Olyphant et al. Order affirmed.

COUNSEL

Joseph F. Dutka, for appellant.

Andrew Homanich, Associate Counsel, with him E. S. Lawhorne, Associate Counsel, R. D. Holahan, Counsel, and Walter E. Alessandroni, Attorney General, for State Workmen's Insurance Fund, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 200 Pa. Super. Page 242]

OPINION BY ERVIN, J.

In this Workmen's Compensation case the referee, the board and the court below denied compensation to the claimant.

[ 200 Pa. Super. Page 243]

When the decision of the board is against the party having the burden of proof, the question before us on appeal is whether the board's findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of the competent evidence: Fox v. American News Co., 190 Pa. Superior Ct. 74, 76, 151 A.2d 670.

As was said by President Judge KELLER in Less v. State Workmen's Insurance Fund, 146 Pa. Superior Ct. 70, 71, 22 A.2d 61: "This workmen's compensation death claim naturally excites one's sympathy, but it is subject to the condition uniformly imposed in all such claims, viz, that compensation is payable only if the death of the employee accidentally occurred in the Course of his employment."

There is no dispute as to the facts. They are as follows: At 2:30 o'clock in the morning of January 30, 1961 plaintiff was awakened by her husband, who had awakened from sleep to find his home ablaze. The decedent took the plaintiff outside, and then went through the flames to an upstairs bedroom to get his daughter Caroline out of the house. In rescuing his daughter he received severe burns which caused his death the same day. At the time the decedent entered the house to rescue his daughter, no fire alarm had been turned in and no other firemen were present. The board concluded that, at the time of decedent's injury, he was engaged in a purely personal matter and the fact that he was a member of the local volunteer fire company did not make him an employee of the Borough of Olyphant while so engaged.

The Workmen's Compensation Act provides that the term "employee" shall include all members of volunteer fire companies while actually engaged as firemen or while going to or returning from any fire which the fire companies or fire department of ...


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