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DEL ROSSI v. PENNSYLVANIA TURNPIKE COMMISSION ET AL. (09/15/67)

decided: September 15, 1967.

DEL ROSSI
v.
PENNSYLVANIA TURNPIKE COMMISSION ET AL., APPELLANTS



Appeal from order of Court of Common Pleas No. 8 of Philadelphia County, June T., 1966, No. 12, in case of Hugh Del Rossi, deceased, by Catherine Campbelline on behalf of Sharon Del Rossi, v. Pennsylvania Turnpike Commission et al.

COUNSEL

Howard M. Girsh, with him Steinberg & Girsh, for appellants.

Herbert W. Salus, Jr., with him John Norris Serena, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J. Watkins, J., joins in this dissenting opinion.

Author: Jacobs

[ 210 Pa. Super. Page 487]

The sole issue in this workmen's Compensation case is whether or not decedent was in the course of his employment at the time of his accidental death. The referee decided that he was. The board decided that claimant had failed to prove that decedent was in the course of his employment. The court below reversed the board and sent the case back to the board for further consideration. The defendants have appealed.

The burden was on the claimant to prove all elements of his claim. Ewing v. Alan Wood Steel Co., 138 Pa. Superior Ct. 519, 12 A.2d 121 (1940), and where the decision of the board is against the party having the burden of proof the question before the court on appeal is to determine 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. Rodgers v. Methodist Episcopal Hospital, 188 Pa. Superior Ct. 16, 145 A.2d 893 (1958).

[ 210 Pa. Super. Page 488]

The decedent was employed by the Pennsylvania Turnpike Commission at its maintenance depot at Plymouth Meeting. He was an electrician helper or lamp checker, and on Thursday, May 9, 1963 he was scheduled to work from 8 p.m. to midnight at the task of checking lamps on one of the turnpike interchanges. Such checking was always done by the decedent in a truck furnished by the defendant and kept at the maintenance depot. On the night in question at approximately 7:45 p.m. the decedent drove his privately owned vehicle across the medial barrier on the turnpike and was killed. He was headed away from the maintenance depot. This accident occurred approximately one mile east of the Plymouth Meeting maintenance building where decedent had been seen one-half hour earlier.

Section 301 of The Pennsylvania Workmen's Compensation Act of June 2, 1915, P. L. 736, as amended, 77 P.S. ยง 411, which is the controlling statute, provides, inter alia, as follows:

"The term 'injury by an accident in the course of his employment' . . . shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere, and 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."

[ 210 Pa. Super. Page 489]

The decedent was not shown to be engaged in the business of his employer at the time of his death, going to or from work not being considered as furthering the affairs of the employer in the absence of special circumstances not here present. Palko v. Taylor-McCoy Page 489} Coal & Coke Co., 289 Pa. 401, 137 A. 625 (1927); Ristine v. Moore, 190 Pa. Superior Ct. 610, 155 A.2d 456 (1959). Therefore, compensation could only be awarded if decedent was injured on the premises ...


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