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WORKMEN'S COMPENSATION APPEAL BOARD AND HAROLD DEWOLF v. FRED DELCIMMUTO (01/19/76)

decided: January 19, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD AND HAROLD DEWOLF, JR., ON BEHALF OF HAROLD DEWOLF, III, DECEASED
v.
FRED DELCIMMUTO, T/A DELL SECURITY AGENCY, APPELLANT. WORKMEN'S COMPENSATION APPEAL BOARD AND FRED DELCIMMUTO, T/A DELL SECURITY AGENCY V. HAROLD DEWOLF, JR., ON BEHALF OF HAROLD DEWOLF, III, DECEASED, APPELLANT



Appeals from the Order of the Workmen's Compensation Appeal Board in case of Harold DeWolf, Jr., on behalf of Harold DeWolf, III, Deceased v. Fred DelCimmuto, t/a Dell Security Agency, No. A-69184.

COUNSEL

Seymour A. Sikov, with him Michael I. Hyman, and Sikov and Love, for DelCimmuto.

Thomas P. Geer, for DeWolf.

James N. Diefenderfer, for Board.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. President Judge Bowman dissents.

Author: Crumlish

[ 23 Pa. Commw. Page 44]

Appellant-employer, Fred DelCimmuto, t/a Dell Security Agency, appeals an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of lifetime compensation together with burial and hospital expenses to Harold DeWolf, Jr., (Claimant), upon his fatal claim petition filed following the death of his son. We affirm.

Harold DeWolf, III (Decedent), a uniformed security guard, had been assigned to a Pennsylvania state liquor store in Pittsburgh. His duties included the following: 1) to determine that the store door was securely locked and the cash register was cleared at the end of the work day; 2) to accompany store employees to their parked automobiles insuring their safety. On October 2, 1971, after the usual store closing, decedent accompanied the various employees to their cars. Approximately five minutes later, decedent talked with a fellow employee assigned to guard a supermarket adjacent to the liquor store. Shortly thereafter, that employee heard gunshots and later found decedent lying in or about the liquor store parking lot. Decedent subsequently succumbed.

The threshold question for our determination is whether decedent was in the course of his employment

[ 23 Pa. Commw. Page 45]

    under Section 301 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 411 (Act), when he received the fatal wounds. Critical to the Board's conclusion were these additional facts: Decedent's work day extended to 9:30 P.M. and he was paid until that time, notwithstanding the fact that the store closed and the employees departed by 9:00 P.M.; and employer required decedent to return directly to his home at the conclusion of the day when he would remove his uniform and gun, since "he was not permitted to wear his uniform and/or carry his gun in any public place or for any purposes other than his work."

Although the existence of the regulation concerning the wearing of the uniform and carrying of the gun was disputed by various fellow employees, the referee found, and the Board adopted as fact, that there did exist a duty with respect to the time during which decedent was required to remain uniformed. These additional facts persuaded the Board to conclude that the employee while still uniformed as required by his employer, and still carrying a gun during the precise period of the shooting, was within the course of his employment.

Appellant contends that there is well established law which holds that injuries sustained while going to or from work, not on the employer's premises, are not compensable. See Palko v. Taylor-McCoy Coal & Coke Company, 289 Pa. 401, 137 A. 625 (1927); Cymbor v. Binder Coal Company, 285 Pa. 440, 132 A. 363 (1926); Del Rossi v. Pennsylvania Turnpike Commission, 210 Pa. Superior Ct. 485, 233 A.2d 597 (1967); Ristine v. Moore, 190 Pa. Superior Ct. 610, 155 A.2d 456 (1959); Harrington v. Workmen's Compensation Appeal Board and City of Philadelphia, 15 Pa. Commonwealth Ct. 119, 325 A.2d 337 (1974). However, as Appellant states, the exception to ...


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