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.
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.
[ 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 ...