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ABBOTTS DAIRIES AND ITS INSURER v. COMMONWEALTH PENNSYLVANIA (11/08/78)

decided: November 8, 1978.

ABBOTTS DAIRIES AND ITS INSURER, AMERICAN MUTUAL LIABILITY INS. CO., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BETTY YATES, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Betty M. Yates v. Abbotts Dairies and its Insurer, American Mutual Liability Insurance Co., No. A-71882.

COUNSEL

Charles W. Craven, with him, of counsel, John J. Coffey and Marshall, Dennehey & Warner, for Abbotts Dairies and its insurer American Mutual Liability Ins. Co.

John H. Clark, Jr., for Betty M. Yates.

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

Author: Blatt

[ 38 Pa. Commw. Page 425]

Abbotts Dairies (Abbotts) and its insurer, Mutual Liability Insurance Co., appeal to this Court from an order of the Workmen's Compensation Appeal Board (Board), which reversed a referee's denial of compensation to Betty Yates (Claimant), the widow of Edward Yates (decedent).

The decedent was employed by Abbotts as a milkman for twenty-two years. On March 12, 1974, while driving his milk truck, he was fatally injured in a single-vehicle accident to which there were no eye-witnesses. The decedent's wife applied for death benefits under The Pennsylvania Workmen's Compensation Act.*fn1

A hearing was held after which the referee made the following findings of fact in regard to the accident: it was dark, but the area was well lighted; the weather was clear; the road surface was dry and in good condition; the accident was not caused by any mechanical malfunction or physical obstruction; the alcoholic content of the decedent's blood was 0.14 percent; and the decedent was under the influence of alcohol and unfit to drive. The referee cited Section

[ 38 Pa. Commw. Page 4261037]

of the Vehicle Code, Act of April 29, 1959, P.L. 58, No. 32, which classifies driving while under the influence of intoxicating liquor as a misdemeanor, and Section 624.1 of the Vehicle Code,*fn2 which establishes a presumption that a person with 0.10 percent or greater alcohol content in his blood is under the influence of intoxicating liquor, concluding that the employee's voluntary intoxication here had caused the accident in which he died and was a complete defense to the claim for compensation benefits.

On appeal the Board rejected the finding of no physical obstruction as unsupported by competent evidence, but otherwise accepted the referee's findings. It disagreed, however, with the referee's legal conclusions and reversed his decision, holding that, although compensation is totally barred when the injury results from the employee's violation of law,*fn3 the employer here had not met its burden of showing that the death was caused by a violation of law by the decedent. The Board, therefore, granted benefits, and this appeal followed.

Our scope of review, as defined by Section 44 of the Administrative Agency Law,*fn4 is limited to a determination as to whether or not an error of law was committed, constitutional rights were violated, or findings of fact were ...


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