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PARIS LINEN AND DECORATING SHOPS v. TRUMBULL (03/02/73)

decided: March 2, 1973.

PARIS LINEN AND DECORATING SHOPS, INC.
v.
TRUMBULL



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In the Matter of Margaret E. Trumbull, widow of Vernon L. Trumbull, Deceased v. Paris Linen and Decorating Shops, Inc., No. 71-01850.

COUNSEL

John P. Knox, with him Curtis Wright and Timoney, Knox, Avrigian & Hasson, for appellant.

Paul J. Senesky, with him Galfand, Berger, Senesky, Lurie & March, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by President Judge Bowman. Judge Mencer joins in this dissenting opinion.

Author: Wilkinson

[ 8 Pa. Commw. Page 51]

The sole issue in this Workmen's Compensation case is whether the decedent was in the course of his employment with the appellant when he was killed. The referee concluded that he was and his finding was affirmed by the Workmen's Compensation Board. The Court of

[ 8 Pa. Commw. Page 52]

Common Pleas of Montgomery County likewise affirmed and this appeal followed.

In a Workmen's Compensation case, the Board is the ultimate fact finder. Fesh v. American Steel and Wire Division, United States Steel Corporation, 4 Pa. Commonwealth Ct. 84, 286 A.2d 10 (1972). As found by the Board, the facts here are that the decedent was principally employed as an outside salesman by Elmar Supply Company, calling upon retail stores in a van vehicle supplied by Elmar for that purpose. In addition, and as a separate matter, decedent was employed by appellant as a salesman three nights each week. As part of his duties for appellant, he provided a "shop-at-home" service, which involved calling on prospective customers in their homes and if successful in selling draperies, returning to do the installation should the customer so request. Decedent used the Elmar van when making these "shop-at-home" visits.

On February 28, 1969, the decedent spent the day performing services for his principal employer, Elmar Supply Company. He reported to appellant's place of business at about 7:30 p.m. At some point thereafter, he departed to make a "shop-at-home" visit to the home of a Mrs. Miller. Decedent obtained an order for draperies and left the Miller house about 10:45 p.m. At approximately 11:30 p.m., while returning home, he was involved in an automobile accident near his home. His death occurred the following day as a result of injuries sustained in the accident.

It is important to note that this is not a case where the problem is whether a deviation has removed an employee from the course of employment, as was involved in Maher v. Hallmark Cards, Inc., 207 Pa. Superior Ct. 472, 218 A.2d 593 (1966). There is no evidence here of a deviation from the normal sequence of decedent's duties for the appellant. Nor should the

[ 8 Pa. Commw. Page 53]

    entire trip for the appellant's business be considered simply a deviation from decedent's Elmar employment merely because he was driving the Elmar truck at the time. Decedent's conduct in reporting to work and making a visit ...


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