Appeal from the Order of the Workmen's Compensation Appeal Board in case of Isabelle Greene, widow of Monroe Greene, deceased, v. Marger, Inc.
Patrick A. Gleason, with him Gleason, DiFrancesco, Shahade and Markovitz, for appellant.
Harry B. Thatcher, with him James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 21 Pa. Commw. Page 376]
This action is again before us after having been remanded to the referee under our order to the Workmen's Compensation Appeal Board (Board) in Greene v. Marger, Inc., 12 Pa. Commonwealth Ct. 423, 317 A.2d 358 (1974). In that order we directed that a proper adjudication be made with specific findings as to whether or not Monroe Greene, the claimant's husband, was killed in the course of his employment with Marger, Inc. (Marger). The referee thereupon found that the decedent was killed in the course of such employment and awarded benefits, but the Board reversed this finding and denied benefits. The claimant-widow now appeals to this Court, and we must reverse the Board and affirm the referee.
Whether or not an employee is in the course of his employment is, of course, a legal question based upon findings of fact all of which are subject to our review. Scarpelli v. Workmen's Compensation Appeal Board, 18 Pa. Commonwealth Ct. 30, 333 A.2d 828 (1975). The decedent here was employed by Marger, a business which owned and placed vending machines in commercial establishments at various locations. On remand, the referee made the following applicable findings regarding the decedent's employment by Marger and his activity in relation thereto on the day of the accident:
[ 21 Pa. Commw. Page 377]
"THIRD: The duties of the decedent with the defendant included the overall supervision of the defendant's business, said business being that of owning and placing vending machines in business establishments in the area served by the defendant. These duties specifically entailed public relations with the defendant's customers and visiting their establishments served by the defendant on various occasions.
"FOURTH: On May 23, 1968 the decedent accompanied by his wife, the claimant-widow herein, was traveling by automobile on Route 22 from Altoona to Lewistown. The decedent stopped at Motel 22 located on Route 22 near Mt. Union, Pennsylvania, said establishment being one of the defendant's customers. The decedent entered the establishment, the claimant remained in the automobile.
"FIFTH. Upon resuming their journey to Lewistown with the intention of stopping at Corkin's Restaurant, Lewistown, Pennsylvania, another customer of the defendant, and shortly after leaving Motel 22 on May 23, 1968, the decedent was involved in a collision which resulted in his death on May 24, 1968."
It was admittedly true, however, that the decedent had just previously been engaged in business dealings in Altoona which were on behalf of another corporation, not Marger, with which he was also associated. As a matter of law, therefore, no presumption could be raised that he was engaged in the furtherance of Marger's business at the time of the accident, because he did not originally begin his journey on Marger's behalf. J.R. Hess, Inc. v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 87, 329 A.2d 923 (1975). It remained, therefore, the claimant's burden to prove that the decedent actually was ...