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BERGER v. BERGER ET AL. (11/13/69)

decided: November 13, 1969.

BERGER
v.
BERGER ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Philadelphia County, Feb. T., 1968, No. 964, in case of Ida Berger, widow of Harry Berger, deceased, v. Boris Berger et al.

COUNSEL

Penrose Hertzler, for appellants.

Joseph M. Leib, with him Jerome Poltenstein, and Rubin, Leib and Caesar, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Dissenting Opinion by Montgomery, J. Wright, P. J., and Watkins, J., join in this dissent.

Author: Hoffman

[ 215 Pa. Super. Page 513]

This is a workmen's compensation case brought by the widow of a deceased employee.

Decedent was a forty-nine year old man who worked in his brother's grocery store. According to the uncontradicted testimony of the brother, decedent "used to take care of trade, wait on the people, buy stuff, running my business." Decedent's duties were generally of a light nature. "Boys take care of all the heavy stuff, cleaning up the store and things like that." Occasionally, however, the decedent would deliver grocery orders to store customers. Such orders were generally small. The brother testified in this regard as follows: "Q. In your business you did deliver orders? A. Yes. . . . Just little orders we used to deliver. Q. What do you mean? A. $3, $4, $5. Q. Did you have many orders that ran over $30.00? A. I would say every month maybe when they get their checks. Q. How many such orders would you have a month? A. Maybe five or six orders at once."

It is apparent from the record that the two boys who were employed in the store delivered most of these

[ 215 Pa. Super. Page 514]

    orders. Thus, the record indicates that decedent delivered only one or two heavy orders a month.

On June 12, 1965, decedent delivered a large carton and a large shopping bag filled with "groceries, meats and vegetables, soap powder and bleach and regular food, canned goods." The customer to whom the delivery was made testified that decedent drove to her home in a car and then made two trips from the street to the house, bringing the box on one trip and the bag on the other. After the completion of the second trip, the decedent collapsed and was taken to the hospital by the customer. Shortly thereafter he died of a heart attack.

On this record, the Board found "if strain there was, it was the result of a normal amount of exertion required by the decedent's everyday duties. There is no evidence that carrying the box of groceries or shopping bag of groceries required exertion that was unusual in the course of decedent's employment. The criterion is not whether the act causing the injury was unusual generally speaking, but whether it was unusual and untoward in the course of the employment in which the employee was engaged." [Emphasis added]

This language, on its face, is ambiguous. While the Board referred to a strain unusual in the course of decedent's employment, it is not clear whether the Board was referring to activities unusual for this particular employee or, rather, to activities unusual in the course of the employee's occupation ...


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