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BOROUGH ALDAN v. COMMONWEALTH PENNSYLVANIA (11/20/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 20, 1980.

BOROUGH OF ALDAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND DOLORES HAROLD, WIDOW OF DAVID HAROLD, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Dolores P. Harold, widow of David D. Harold v. Borough of Aldan, No. A-74644.

COUNSEL

William D. March, Scallan, March, Berman, Del Fra & Wochok, for petitioner.

Michael A. Paul, Richard, Brian, DiSanti & Hamilton, for respondent, Dolores Harold, widow of David Harold.

President Judge Crumlish and Judges Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 54 Pa. Commw. Page 623]

The Borough of Aldan (Borough) seeks review of a decision of the Workmen's Compensation Appeal

[ 54 Pa. Commw. Page 624]

Board (Board) which affirmed a referee's grant of benefits and attorney's fees to Dolores Harold (claimant) for the death of her husband, David P. Harold (decedent).

On the evening of February 4, 1977, the decedent, who was then employed as Chief of Police for the Borough, was in the process of cleaning his service revolver in the basement of his home when his gun accidentally discharged causing his death. The referee concluded and the Board agreed that the death had occurred during the course and in the performance of the decedent's duties as a police officer and awarded death benefits to the claimant and the referee further found, again with the Board's affirmation, that it was unreasonable for the Borough to contest this claim and granted attorney's fees to the claimant's counsel pursuant to Section 440 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, added by, Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 996.*fn1

The Borough contends that the Board erred in affirming the referee's determination in that (1) the decedent's wound was received while he was engaged in conduct in his home for which he received no compensation and, therefore, that his injury did not occur during the course of his employment as required by Section 301(c) of the Act, Act of June 2, 1915, P.L.

[ 54 Pa. Commw. Page 625736]

, as amended, 77 P.S. § 411(1),*fn2 and (2) even if the decedent was injured in the course of his employment, attorney's fees should not have been granted because the Borough had a reasonable basis upon which to contest this claim.

In a workmen's compensation case, the issue as to whether or not an employee was in the course of his employment when fatally injured is a question of law subject to review by this Court based upon the findings of the factfinder, and the claimant must bear the burden of proving that the decedent was wounded while "actually engaged in the furtherance of the business or affairs of the employer." Krawchuk v. Workmen's Compensation Appeal Board, 40 Pa. Commonwealth Ct. 591,

[ 54 Pa. Commw. Page 626397]

A.2d 1296 (1979); Section 301(c) of the Act, 77 P.S. § 411(1). In determining whether an employee was injured in the course of his employment, this Court has held in Krawchuk v. Workmen's Compensation Appeal Board, supra at 598, 397 A.2d at 1300 (dissents by JJ. Rogers and Blatt), that

Where an employee is injured in his home, furtherance of the employer's business has been held to mean that the employee was doing something at home for the convenience of his employer, that he was performing a specific duty by reason of a clearcut request by his employer or that the employer directed the employee to work at home.

Based upon the facts as found by the referee and the Board,*fn3 we believe that the claimant has met her burden of showing that the decedent, when injured, was performing his duties as an employee of the Borough. The decedent kept his service revolver in proper operating condition in order to ensure the safe and efficient enforcement of the Borough laws. He was obligated to do so by way of his employment under the collective bargaining agreement with the Borough and the Borough at least impliedly encouraged its police officers to clean their weapons in their own homes by providing no other adequate facilities for this dangerous and necessary task. We would hold, therefore, that

[ 54 Pa. Commw. Page 627]

    the decedent was fatally injured in the course of his employment as the Borough's police chief.

As to the Borough's argument that attorney's fees should not be granted in that the decedent was performing a task in his own home for which he was not to be compensated and that, therefore, a reasonable question existed as to whether or not the decedent was acting within the course of his employment, we believe that, as a matter of law, the Borough had no reasonable basis upon which it could contest this claim. Hartman v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 609, 333 A.2d 819 (1975). There can be little dispute that a police officer has a duty to maintain his service revolver in a safe condition as part of his employment and not as a personal convenience even though he receives no additional compensation for his efforts. The fact that this decedent performed that task at home does not change the nature of the duty he was fulfilling, especially in light of the Borough's failure to provide facilities at the police hall where officers could safely clean their weapons. We will, therefore, affirm the Board's grant of attorney's fees to the claimant's counsel.

Order

And Now, this 20th day of November, 1980, we hereby affirm the decision of the Workmen's Compensation Appeal Board in the above-captioned matter and we order and direct the Borough of Aldan, Aldan, Pennsylvania, and/or Harleysville Insurance Company, insurance carrier, to pay to the claimant, Dolores Harold, death compensation at the rate of $174.74 per week, beginning February 4, 1977, and continuing thereafter during the continuance of her widowhood with interest at 10% per annum for all deferred amounts of compensation payable hereunder and also to pay to the claimant the sum of $1,500.00 for the

[ 54 Pa. Commw. Page 628]

    burial expenses of the decedent, David P. Harold, and also to pay as costs to the claimant an attorney's fee approximating the equivalent of 22.5% of the initial amount of the recovery to the claimant in the specific amount of $2,500.00, the same to be paid directly to Howard Richard, Esquire, as attorney for the claimant.

Disposition

Affirmed.


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