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decided: December 2, 1977.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of James Habecker, Deceased, Marian Habecker, Widow, v. Repco Products Corp., No. A-70490.


David L. White, with him John F. McElvenny, for appellant.

Thomas F. McDevitt, with him James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Judge Mencer dissents. Concurring Opinion by President Judge Bowman.

Author: Crumlish

[ 32 Pa. Commw. Page 556]

This is an appeal by Repco Products Corp. (Appellant) from a decision of the Workmen's Compensation Appeal Board (Board) affirming the referee's grant of compensation to Marian Habecker (Claimant) due to the death of her husband (Decedent).

As found by the referee, Decedent died of injuries sustained from a blow struck by a co-worker. The referee found that the attack arose from "reasons regarding decedent's employment" and awarded benefits to Claimant. The Board affirmed without taking any further testimony.

Appellant argues that the attack was the result of discordance which was personal to Decedent and that, pursuant to Section 301(c) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. (Act), compensation must be disallowed as it was not an "injury" as it is defined in the Act.

Section 301(c), 77 P.S. § 411, states:

'Injury,' 'personal injury,' and 'injury arising in the course of his employment' defined

(1) . . . The term 'injury arising in the course of his employment,' as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer. . . .

According to testimony, the immediate precipitant of the fatal blow was a near accident that occurred the prior afternoon which caused an argument the subsequent morning during which Decedent insulted the assailant. There was also abundant testimony that

[ 32 Pa. Commw. Page 557]

    the root cause of the attack was pre-existing animosity between assailant and Decedent that had developed directly out of work-related disputes. Therefore, the question raised by this appeal is whether an injured party may be compensated for injury received in the course of his employment from an assault due to personal animosity arising from work-related disputes. We hold that such an injury is compensable.

The Act in our view would not express the intention of the legislature if it barred compensation in a case such as this. The statute bars compensation where the injury was caused by the act of a third party intended to injure the employe "because of reasons personal to him, and not directed against him as an employe or because of his employment."*fn1 (Emphasis added.) Bearing in mind the traditionally liberal interpretation accorded to the Act,*fn2 if it can be shown that the assault occurred because of the employment, it will be compensable. If animosity develops from work-related disputes, the animosity has developed because of the employment and is therefore compensable.

In accord with this interpretation is the case of United States Steel Corp. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 247, 309 A.2d 842 (1973), where the injured party was struck several days after a work-related incident. The Court also noted the Act is to be liberally construed due to its remedial nature and that the employer has the burden of proving that the assailant intended to injure the victim due to personality differences.

[ 32 Pa. Commw. Page 558]

This position is supported by McBride v. Hershey Chocolate Corp., 200 Pa. Superior Ct. 347, 188 A.2d 775 (1963). That case is similar to the case at bar in that there was some dispute over whether the motive for an assault was purely personal animosity or animosity developed from work-related disputes. The Superior Court noted that the "trial court properly charged that the jury must find that the reasons for the attack were purely personal," (emphasis added), 200 Pa. Superior Ct. at 350, 188 A.2d at 777, in order for the resulting injuries to be non-compensable. The inference is that if the motivation for the assault were not "purely personal," that is, if it had arisen out of a work-related dispute, the resulting injuries would be compensable. There the jury found that animosity was not work-related but the only arguably work-related incident had occurred some eight years before the assault.

The motivation of the assailant is thus a question of fact which the trier of fact, in this case the referee, must determine. McBride v. Hershey Chocolate Corp., supra, 200 Pa. Superior Ct. at 353-54, 188 A.2d at 780. Where the compensation authorities found against the party with the burden of proof, our Court is limited in its review to a determination as to whether the findings of the referee are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. That the referee has disregarded other conflicting evidence is immaterial since it is for him to resolve conflicts in testimony. Shoup v. Allegheny Lutheran Home, 25 Pa. Commonwealth Ct. 528, 360 A.2d 278 (1976).

Even the most cursory review of the testimony supports the referee's findings since both the assailant and a second witness specifically testified that the fatal fight arose out of animosities developed in the

[ 32 Pa. Commw. Page 559]

    course of Decedent's employment. Decedent was the maintenance worker for the machine upon which the assailant worked. The two argued about the repairs done on the assailant's machine and the assailant's desire to assist or learn how to repair the machines. For example, the assailant testified as follows:

"Q Now, sir, would you tell the Referee the circumstances surrounding your fight with Mr. Habecker, starting how the fight began, ...

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