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CARMEL SYLVESTER AND JOSEPH SYLVESTER v. ANGELO PERUSO (04/20/81)

filed: April 20, 1981.

CARMEL SYLVESTER AND JOSEPH SYLVESTER, HER HUSBAND, APPELLANTS,
v.
ANGELO PERUSO, ALDIS PERUSO, STYLECRAFT FASHIONS, INC., CARL DELUCA AND HARVEY DELONG



No. 1008 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Civil Action, Law, of the County of Northampton at No. 1978-C-564.

COUNSEL

Kevin J. Kelleher, Easton, for appellants.

Robert E. Simpson Jr., Easton, for appellees.

Price, Watkins and Hoffman, JJ. Hoffman, J., files a dissenting opinion.

Author: Watkins

[ 286 Pa. Super. Page 226]

This is an appeal from the order of the Court of Common Pleas of Northampton County, Civil Division, which granted the defendants' motions for a summary judgment. The court below held that the plaintiff was precluded from maintaining a civil action against appellees because her sole remedy was under the Workmen's Compensation Act.

On May 20, 1977, plaintiff Carmel Sylvester was injured while a passenger in an automobile owned by defendants Angelo Peruso and Aldis Peruso, trading as Stylecraft Fashions, Inc. and operated by Carl DeLuca. Both DeLuca and Carmel Sylvester were employees of Stylecraft and both employees were proceeding to work in the company automobile at the time of the accident which caused plaintiff's injuries. DeLuca picked up Carmel Sylvester regularly to take her to work, at her request. This service was offered

[ 286 Pa. Super. Page 227]

    as a convenience to DeLuca and Sylvester and neither employee was paid for the time they were being transported to work. Nor was there a contract requiring the employer to provide transportation for its employees. DeLuca would, however, provide transportation to certain employees who requested it pursuant to orders from Mr. Peruso. DeLuca had been driving the plaintiff to work for a period of eight (8) to ten (10) years. Peruso knew that company vehicles were being used to transport certain employees to work and had specific knowledge that plaintiff was one of these employees prior to the date of the accident. As a result of the injuries suffered during the accident, plaintiff received workmen's compensation benefits. She then commenced a civil action against DeLuca and her employers.

An employee is entitled to workmen's compensation benefits from his employer for an injury which occurs while he is engaged in the course of his employment. 77 P.S. 431. In return for receiving the protections of the Workmen's Compensation Act, which require only that a person be injured while in the course of his employment and does not require a finding that the injury was the result of anyone's negligence, the employee gives up the right to maintain a civil action against his employer and/or co-employees unless the injury was an intentional one. 77 P.S. 72. Apple v. Reichert, 443 Pa. 289, 278 A.2d 482 (1971). Thus, the sole issue is whether plaintiff's injury occurred while she was in the course of her employment.

As a general rule the act of going to or returning from work does not constitute a furtherance of the employer's business. As such an employee so engaged is not engaged in the course of his employment. Susman v. Kaufman's Department Store, 182 Pa. Super. 467, 128 A.2d 173 (1957). However, this general rule is subject to exceptions and there is no general formula to determine readily whether an accident off the premises occurred in the course of employment. Cases involving this question must be disposed

[ 286 Pa. Super. Page 228]

    of on their own peculiar facts. Coleman v. Fischer, 164 Pa. Super. 261, 63 A.2d 687 (1949). In the instant case the employer provided the means of transporting the plaintiff to work. Although, the employer had assumed no contractual obligation to do so it had provided this service to plaintiff for eight (8) to ten (10) years, paid for the gasoline, owned the vehicle, and had directed the driver, another employee, to pick up plaintiff and certain other employees who requested a ride to work. In addition, plaintiff filed for and received Workmen's Compensation benefits thereby asserting her status as an employee engaged in the course of her employment at the time of the accident. To permit her now to disclaim such status so that she is able to pursue other benefits would be grossly unfair and would defeat the legislative purposes ...


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