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PATRICIA M. STOJAK v. COMMONWEALTH PENNSYLVANIA (03/06/81)

decided: March 6, 1981.

PATRICIA M. STOJAK, WIDOW OF FRED S. STOJAK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BUNGE CORPORATION, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Patricia M. Stojak, Widow of Fred S. v. Bunge Corp., No. A-77268.

COUNSEL

Jerome Jaffee, with him Albert J. Olizi, Jr., and Robert E. Cherwony, of counsel: Sidkoff, Pincus, Greenberg & Green, P.C., for petitioner.

David F. Kaliner, for respondents.

Judges Mencer, Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 57 Pa. Commw. Page 333]

Claimant-widow Patricia Stojak appeals the dismissal of her fatal claim petition by the board,*fn1 which affirmed the referee's conclusion that her husband's death was not related to and did not arise in the course of his employment.*fn2

Decedent, who was a laborer for Bunge Corporation, had reported to work at 8:00 p.m. on December 23, 1976 at the company plant. He was killed on December 24, 1976 at 2:45 a.m., when his car went off the highway and struck a utility pole. Decedent was intoxicated at the time of the accident, with a blood alcohol level of .203%.

The claimant-widow alleged that the decedent's death was related to and arose causally in the course

[ 57 Pa. Commw. Page 334]

    of his employment because he had been drinking liquor provided by Bunge on its premises before his fatal accident.

Bunge customarily gave a bottle of liquor to each employee as a gift on the last day of work before Christmas, and allowed the employees to leave early while paying them for a full eight hours. Bunge repeated this practice on the night in question, but the witnesses who testified before the referee differed sharply as to whether the employees remained on the premises to drink.

Claimant offered the testimony of two Bunge employees to support her contention that Bunge permitted her husband and other employees to consume the gift liquor on its premises. Tony Nasobkow, a shop steward who worked the decedent's shift, stated that around 9:30 p.m. that evening, the supervisor began calling the employees into the office to give each of them a fifth of Seagrams V.O. He testified that several employees, including decedent, began drinking in the lunchroom until the supervisor told them that they could leave, which was around 11:30 p.m. However, he said that the decedent did not leave until 1:30 a.m.

Nasobkow testified that the company's practice was to allow the employees to stay after they received their liquor because the company offered the premises as "a place to have a party with all of the workers." He acknowledged that the company prohibited drinking on the premises; a rule stating that ...


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