Appeal from the Order of the Workmen's Compensation Appeal Board in case of Carolyn J. Davis v. Foodarama Supermarkets, Inc., No. A-72349.
Charles J. Hair, with him Thomas & Hair, for petitioner.
John E. Roberts, with him Thomas A. Wallitsch, for respondent.
Judges Crumlish, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 41 Pa. Commw. Page 263]
This is an appeal from a decision of the Workmen's Compensation Appeal Board (Board) affirming the decision of the referee denying benefits to Carolyn J. Davis (Claimant). Claimant is the widow of Joseph W. Davis, Sr. Davis had been employed as a licensed pharmacist by Foodarama Supermarkets, Inc. at their Reading store for approximately three years prior to his death. Before he began his employment, Davis understood that he would be expected to work, when necessary, at Foodarama stores located in Allentown and Bethlehem as well as the store at Reading. The record indicates that Davis had worked at these other stores approximately five times between January 1, 1972, and the date of his death on
[ 41 Pa. Commw. Page 264]
May 3, 1973. On that date Davis was returning from the Bethlehem store to his home in Reading at about 9:35 p.m. when he was involved in an automobile accident which claimed his life. He had left the Bethlehem store at about 9:10 p.m.
Claimant applied for benefits on the premise that Davis was serving his employer at the time of his death, either in the ordinary course of the activities of his employment or in a special errand or mission capacity. After several hearings, the referee issued 25 detailed findings of fact and concluded that Claimant was ineligible for death benefits because her husband had not sustained his fatal injuries during the course of his employment, as that term was defined in Section 301(c)(1) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).*fn1
Claimant argues that the Board erred in affirming the referee's conclusion that Claimant failed to prove by sufficient, substantial evidence that the fatal injuries arose in the course of employment.
From the record we ascertain that on the day of his death Davis went to the Bethlehem store to replace the manager of that store who had to be absent for duties elsewhere. Davis worked his regular hours of employment on the date in question and received
[ 41 Pa. Commw. Page 265]
one and one-half hours extra pay according to the terms of his employment contract because he was working in a store other than his regular one in Reading. Davis was operating a car his wife had rented for their joint use while their own automobile was being repaired. When he left the Bethlehem store he had no further ...