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SHARON SCARPELLI v. WORKMEN'S COMPENSATION APPEAL BOARD AND POMPEY MOTORS/CLIFFORD MOTORS (03/18/75)

decided: March 18, 1975.

SHARON SCARPELLI, WIDOW OF CHRISTOPHER SCARPELLI, DECEASED, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND POMPEY MOTORS/CLIFFORD MOTORS, APPELLEES



Appeal from the Orders of the Workmen's Compensation Appeal Board in case of Mrs. Sharon Scarpelli, widow of Christopher Scarpelli, Deceased, v. Pompey Motors/Clifford Motors, Nos. A-67476 and Misc. 3656.

COUNSEL

Sharon Scarpelli, appellant, for herself.

Paul A. Barrett, with him Nogi, O'Malley & Harris, and James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Mencer, and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 18 Pa. Commw. Page 32]

These actions involve consolidated appeals from decisions of the Workmen's Compensation Appeal Board, the first of which affirmed the order of the referee dismissing the fatal claim petition of Sharon Scarpelli (claimant) and the second of which denied her petition for reconsideration.

The claimant's husband, Christopher Scarpelli, a car salesman for Pompey Motors/Clifford Motors (employer), was killed at 1:45 A.M. on September 15, 1972 when the car he was driving failed to negotiate a curve and collided with a bridge abutment. The claimant filed for death benefits under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 1 et seq., and the referee held hearings to determine the primary question of whether or not the decedent was killed while in the course of his employment.*fn1

The testimony adduced at the hearings clearly established that the decedent worked at the employer's showroom until 9:00 P.M. on the evening of September 14, 1972. He then proceeded to the Wimberly Hills Country Club where he arrived at approximately 9:30 P.M. and remained until 1:30 A.M. shortly before his fatal accident. The claimant asserted that the decedent left the Country Club to meet a business customer at the customer's home and that the customer was to place a deposit on an automobile. The referee concluded, however, that "no evidence was presented" to support the claimant's assertion and found that she had failed to meet her burden of establishing the factual basis for the legal conclusion that the decedent was killed in the course of his employment. On appeal the Board affirmed without

[ 18 Pa. Commw. Page 33]

    taking additional evidence. When the Board denied the claimant's petition for reconsideration, these appeals followed.

The appeal from the Board's denial of the claimant's petition for reconsideration must, of course, be denied. We can find no abuse of discretion on the part of the Board in denying the petition, and, moreover, the claimant's interest in the issues raised therein are fully protected by the appeal from the final adjudication by the Board, which we now consider.

Our scope of review in a case such as this is limited to a determination of whether or not constitutional rights were violated, errors of law were committed, or any necessary findings of fact were unsupported by substantial competent evidence. Foster Wheeler Corp. v. Workmen's Compensation Appeal Board, 13 Pa. Commonwealth Ct. 45, 317 A.2d 922 (1974). And where, as here, the Board has adopted the findings and conclusions of the referee and has found against the party having the burden of proof, review by this Court is to determine whether the findings are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Tioga Textiles Associates, Inc. v. Workmen's Compensation Appeal Board, 13 Pa. Commonwealth Ct. 492, 319 A.2d 211 (1974).

Whether an employee is in the course of his employment is, of course, a legal question. J.R. Hess, Inc. v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 87, 329 A.2d 923 (1975). It is, however, a question based upon the findings of fact. Greene ...


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