Appeal from order of Court of Common Pleas of Dauphin County, March T., 1964, No. 889, in case of Betty Lou Barrick, widow of William L. Barrick, deceased, v. Pocono Highland Camp.
Harry B. Goldberg, with him Ronald M. Katzman, and Goldberg, Evans & Katzman, for appellant.
Christian S. Erb, Jr., with him Metzger, Wickersham & Knauss, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Ervin, P. J.
[ 208 Pa. Super. Page 73]
This is a workmen's compensation case. The facts as stated in the opinion of Judge Shelley of the court below are as follows: "It appears that the decedent was a maintenance worker at Pocono Highland Camp in Monroe County, Pennsylvania. This was a boys' camp that operated during the months of July and August of 1960. During the season, employees were paid a weekly wage, together with food and board. At the time of the accident on September 13, 1960, the camp season had ended. The employees were living in the administration building and purchased their food at a local grocery store. They continued at the same wage and did clean up work. The employees, including the decedent, quit work on September 12, 1960 at about 10:00 a.m. because of inclement weather. The decedent left the camp, went to town on personal business and, although there is not a complete accounting of his time, it is conceded that he did not work again for his employer. He returned to his room in the administration building about midnight. A fire broke out about 2:00 a.m., which resulted in the decedent's death from asphyxiation."
There was a conflict of evidence as to whether or not the decedent was required to be on the premises at the time of the fire. On the one hand, Alex Washeleski, a fellow-employe, testified on direct examination that they are required to remain on the premises and were
[ 208 Pa. Super. Page 74]
subject to call "at any time of the day." On cross-examination, however, he testified that after punching out the time clock Barrick was not due back to work until 8 a.m. the next morning and that he was free to go where he pleased. Andrew Dippre, the foreman, testified that the decedent slept at the camp but that he was not required to be there at night, could go wherever he wanted and was not on call at night. On the other hand, he testified that if there was a need for cleaning up or maintenance after 4:30 p.m., the decedent would have worked at those hours.
Earl Weinberg, the owner of the camp, testified that the decedent was not required to live at the camp, could live where he desired and was not on call at any time. Raymond Jacobs, another fellow-employe, stated that they were not required to be back at the camp again until the following morning at 8 a.m. and testified to the decedent's movements subsequent to his leaving camp until about midnight.
With this conflicting testimony the referee made an award in favor of the claimant. He made six findings of fact and two conclusions of law but made no specific finding as to whether or not the decedent was required to be on the premises of his employer at the time of his death. Upon appeal, the board, which is the ultimate fact finding body, vacated the award and dismissed the claim. It did not disturb the six findings of fact but added two additional findings*fn1 and substituted a different conclusion of law.*fn2
[ 208 Pa. Super. Page 75]
Section 301(c) of The Pennsylvania Workmen's Compensation Act of June 2, 1915, P. L. 736, as amended, reads: "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 . . . sustained by the employe, who . . . is injured upon the premises occupied by or under the control of ...