Appeal from the Order of the Workmen's Compensation Appeal Board in case of Cecil Artrip v. Mace, Inc., No. A-74837.
Harold N. Fitzkee, Jr., for petitioner.
Ronald M. Katzman, Goldberg, Evans & Katzman, for respondent, Mace, Inc.
Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Wilkinson, Jr., dissents.
[ 54 Pa. Commw. Page 503]
This is an appeal by Cecil Artrip (claimant) from an Order of the Workmen's Compensation Appeal Board (Board) reversing a referee's award of compensation to the claimant pursuant to Section 301(a) of the Workmen's Compensation Act.*fn1 The claimant is the president of Mace, Inc. (Employer), a small family enterprise engaged in the business of the sale of subdivided building lots, along with the retail sales of building materials, furniture and appliances.
The action commenced when the claimant filed a claim for benefits as a result of an injury which occurred on January 4, 1976. After a hearing, the referee determined that the claimant's injury occurred on the employer's premises and in furtherance of the employer's business. The claimant was awarded compensation benefits for temporary total disability from January 4, 1976, until April 30, 1976. The referee further determined that the claimant was entitled to partial disability benefits from May 1, 1976, until July 31, 1976; and that as of August 1, 1976, all compensation would terminate. The insurance carrier for Mace, Inc., U.S. Fidelity and Guaranty Group, appealed the referee's decision to the Board. The Board reversed the referee's award and this appeal by the claimant followed.
All of the employees of Mace, Inc., are related either by blood or by marriage. The corporation maintains its office as part of a building in which the claimant resides with his wife and two daughters, ages 8 and 11 years. Surrounding the building are the subdivided lots which Mace, Inc., had available for sale.
On November 20, 1974, as part of his duties as a "working president," the claimant entered into an
[ 54 Pa. Commw. Page 504]
agreement for the sale of one of the building lots. As down payment for the lot, the purchasers traded in a used snowmobile for an $800.00 allowance. Part of the purchase agreement was a guarantee that the snowmobile was in good working condition when delivered. If not, then the previous owners would make the necessary repairs. The snowmobile was delivered in December of 1975 and stored on the premises. It was the claimant's testimony that on January 4, 1976, a Sunday, he took the snowmobile for a test drive to determine its condition pursuant to the agreement with the previous owners. The claimant testified that that day was the first day when there was an appreciable snowfall. Accompanied by his wife, the claimant drove the snowmobile out onto the corporation's land. On the return trip, the claimant was injured when the snowmobile dropped into a gully or washout. As a result of his injury, the claimant was hospitalized with back pain for several weeks and thereafter spent approximately 2 months recuperating at home in bed. At the time of the hearing before the referee, the claimant testified that he was still wearing a brace.
There was additional testimony that the snowmobile had been driven earlier that same day by the claimant's wife and by his two minor daughters.
It is that latter testimony that formed the basis for the reversal of the referee's decision by the Board. The Board reasoned that since the claimant's wife and children had driven the snowmobile previous to the time that the claimant did so, the snowmobile had already been determined to be in working condition. Therefore, the Board concluded that it was no longer necessary for the claimant to drive the snowmobile to check its condition; and that his driving it was not required by his employment or for the ...