Appeals from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1966, No. 2094, in case of Henry Robinson v. Y.W.C.A. et al.
Edward I. Weisberg, with him Alan K. Silberstein and David N. Feldman, for claimant.
Frederick W. Anton, III, with him Paul H. Ferguson, for defendants.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J. Watkins, J., dissents.
[ 215 Pa. Super. Page 20]
When this Workmen's Compensation case was first before us, we quashed the appeal of the claimant and sustained the order of the Workmen's Compensation Board denying compensation in an opinion by Judge Watkins, from which action Judges Hoffman and
[ 215 Pa. Super. Page 21]
Spaulding dissented in a dissenting opinion written by Judge Hoffman. Robinson v. Y.W.C.A., 212 Pa. Superior Ct. 35, 239 A.2d 835 (1968).*fn1 Subsequently the Supreme Court granted allocatur; and after argument it reversed our order quashing claimant's appeal and remanded the matter to us for a determination on the merits. Robinson v. Y.W.C.A., 433 Pa. 211, 249 A.2d 339 (1969).
The matter is now before us for a determination of claimant's appeal on the merits. The appeal of the defendants from the order of the lower court refusing to quash claimant's appeal to it, which we did not specifically dispose of when the case was first before us, has in our opinion been disposed of by the action of the Supreme Court in remanding the case to us for disposition of claimant's appeal on the merits.
The history and facts of this case need not be repeated in this opinion since they are fully set forth in the two opinions previously mentioned. The basic issue now before us is whether the Board's seventh finding of fact, i.e., "We find as a fact that the accident did not occur on the premises owned or under the control of the defendant," can be sustained without a capricious disregard of the competent evidence. Del Rossi v. Pennsylvania Turnpike Commission, 210 Pa. Superior Ct. 485, 233 A.2d 597 (1967). The lower court, speaking through Judge Reed, found that it was sustained by the record. We disagree.
Although we must view the evidence in the light most favorable to the employer since the Board found against the claimant, Lind v. Argo Lamp Company, 198 Pa. Superior Ct. 247, 181 A.2d 726 (1962), there is little, if any, conflict in the evidence. Claimant fell
[ 215 Pa. Super. Page 22]
in the paved area, 20 feet wide, which lies between the paved public sidewalk on Allegheny Avenue and the employer's building wherein it conducts the business of a lodging house for female guests. The area was within the employer's property which was described in its deed (offered in evidence) as, ". . . situate on the south side of Allegheny Avenue laid out as of the width of one hundred twenty feet and the west side of Hancock Street laid out as of the width of fifty feet. . . ." Claimant had been walking east on the public sidewalk on the south side of Allegheny Avenue (included within the limits of the dedicated street) until he reached his employer's property when he left the public ...