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NEMITZ v. AIR SERVICES INTERNATIONAL (12/21/72)

decided: December 21, 1972.

NEMITZ
v.
AIR SERVICES INTERNATIONAL, ET AL.



Appeal from the Order of the Court of Common Pleas of Monroe County, in case of Elizabeth Nemitz, Widow of John Nemitz, Deceased, v. Air Services International and State Workmen's Compensation Fund, No. 265 June Term, 1969.

COUNSEL

Thomas F. McDevitt, for appellant.

Roy N. LaRocca, Special Assistant Attorney General, with him John E. O'Connor, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Dissenting Opinion by Judge Wilkinson. President Judge Bowman and Judge Rogers join in this dissent.

Author: Mencer

[ 7 Pa. Commw. Page 375]

The single question raised in this Workmen's Compensation appeal is whether John V. Nemitz (Nemitz) was, at the time of his accidental death at sea, within that class of "employes whose duties require them to go temporarily beyond the territorial limits of the Commonwealth, not over six months when such employes are performing services for employers whose place of business is within the Commonwealth." Act of June 2, 1915, P.L. 736, art. I, § 101, as amended by the Act of February 28, 1956, P.L. (1955) 1120, § 1, 77 P.S. § 1. It was either admitted or ruled upon by the Workmen's Compensation Board or the court below, and not appealed to us, that in this case the employer's place of business is within the Commonwealth, that Nemitz was an employe performing services for his employer at the time of the accident, that Nemitz died on January 6, 1967, and, if the stated question is resolved affirmatively, that Nemitz's widow is entitled to be paid compensation at the rate of $34 per week, subject to applicable time limitations.

The referee found that Nemitz's employment was within the class exception of Section 1 of The Pennsylvania Workmen's Compensation Act, 77 P.S. § 1, and that the widow was entitled to receive compensation benefits. The Workmen's Compensation Board affirmed

[ 7 Pa. Commw. Page 376]

    the referee's findings and awarded compensation and on appeal the Court of Common Pleas of Monroe County reversed. This appeal followed.

The facts are not in dispute. Nemitz served as an aircraft ferry pilot. His employer was an export agent for Piper Corporation, manufacturers of small aircraft, and engaged in the business of ferrying Piper aircraft to distributors, dealers and customers overseas. On January 6, 1967, while ferrying a Piper plane for his employer from Mount Pocono, Pennsylvania, to Munich, Germany, Nemitz was lost at sea some 350 miles off Shannon, Ireland. An extensive search for pilot and plane was undertaken by many aircraft, but neither was found. Subsequently, legal proceedings in New Jersey concluded in John V. Nemitz's being declared legally dead. The fatal flight was Nemitz's fiftieth flight for his employer. All flights originated in Pennsylvania and, except in three instances, all flights were to overseas destinations. The three flights not ending overseas were terminated at Kennedy International Airport, New York. Nemitz performed no other services for his employer.

As originally enacted, the Workmen's Compensation Act of 1915 applied only to accidents occurring within the Commonwealth of Pennsylvania. By a 1929 amendment, the Act was extended to State employes outside the Commonwealth engaged in the duly authorized business of the State. A later amendment at the same session of the Legislature, 1929, P.L. 853, § 1, extended the Act to accidents occurring to Pennsylvania employes whose duties required them to go temporarily (not over ninety days) beyond the territorial limits of the Commonwealth. By the amendment of 1956, P.L. (1955) 1120, the word "Pennsylvania" was deleted in characterizing the employes, and the time limit for employes temporarily beyond the limits of the

[ 7 Pa. Commw. Page 377]

Commonwealth was extended to a period not ...


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