Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Carol Ann Feaster, Widow of Howard Feaster, Deceased, v. S. K. Kelso & Sons and Employers' Liability Assurance Group, No. 601 June Term, 1970.
Roger B. Wood, with him David L. Pennington, and Harvey, Pennington, Herting & Renneisen, Ltd., for appellants.
Larry A. Colston, with him Joseph A. McNeal, and James N. Diefenderfer, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. President Judge Bowman dissents.
This is the appeal of an employer and its insurance carrier from an order of the Court of Common Pleas of Philadelphia County affirming an award of compensation by the Workmen's Compensation authorities on a Fatal Claim Petition filed by and on behalf of a widow and children of a deceased workman.
The facts were stipulated by the parties as follows:
"The late Howard Feaster was employed by the defendant, S. K. Kelso & Sons, whose place of business is 9 East Athens Avenue, Ardmore, Pennsylvania, for a period of approximately two years prior to October 8, 1966. On Saturday, October 8, 1966, a regular non-working day, Howard Feaster went to the Pine Swamp Recreation Area, owned by Bill Ashenfelter, in Warwick, Pennsylvania. He was not paid while travelling to that location or while at that location. Employees of S. K. Kelso & Sons, including Howard Feaster, occasionally worked overtime. Claimant did not work overtime the day of the accident. Howard Feaster went to the Pine Swamp Recreation Area for a picnic attended by some of the employees of S. K. Kelso & Sons on a voluntary basis. He traveled to the picnic site with another employee of S. K. Kelso & Sons, either Robert McGraw or Samuel Leak, because he did not have a car of his own and needed a lift. Robert McGraw was to start the fire for the picnic and to cook the food for the people attending. The food was supplied by S. K. Kelso & Sons. The picnic was announced by means of the poster which is attached to this statement of facts.*fn1 No rent was paid for use of the picnic grounds. One previous picnic had been held at the same location and before that, picnics were held for a number of years at a public park in Delaware County. There was no organized program of activity and no speeches were scheduled to be given at the picnic. While at the picnic Howard Feaster drowned.
"The parties are agreeable that the facts set forth in this document be accepted by the Referee as having been established as though testimony had been taken. It is the contention of the claimant that she and her children are entitled to compensation and it is the contention of the employer that the claimant and her children are not entitled to compensation."
The stipulation was committed to a referee who found, in addition to the facts contained in the stipulation, that the picnic promoted good employee-employer relationships.
The issue is whether Mr. Feaster's death was "sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer. . . ." The Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411. This issue is one of law to be determined on the facts found by the compensation authorities. Farrell v. The House of Seagram, Inc., 8 Pa. Commonwealth Ct. 69, 301 A.2d 121 (1973); Henry v. Lit Brothers, Inc., 193 Pa. Superior Ct. 543, 165 A.2d 406 (1960). The phrase "actually engaged in the furtherance of the business or affairs of the employer" (usually expressed in the more restrictive term "in the course of employment") must be given a liberal construction, ...