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PYPERS v. COMMONWEALTH PENNSYLVANIA (12/28/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 28, 1981.

PYPERS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND BEATRICE JOSEPHINE BAKER, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Beatrice Josephine Baker v. Pypers, No. A-76132.

COUNSEL

Gary A. Hurwitz, with him William D. March, Scallan, March, Berman, Del Fra & Wochok, for petitioner.

Marc S. Jacobs, Galfand, Berger, Senesky, Lurie & March, for respondent, Beatrice Josephine Baker.

Judges Blatt, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Judge Blatt.

Author: Palladino

[ 63 Pa. Commw. Page 415]

Pypers appeals a Workmen's Compensation Appeal Board order which affirmed an award of benefits to Beatrice Baker. We vacate and remand.

Where the party with the burden of proof has prevailed below, our scope of review is limited to a determination of whether or not there has been an error of law, a violation of constitutional rights, or the referee's findings are supported by substantial evidence. International Petroleum Service v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 141, 430 A.2d 1055 (1981).

The central issue before us is whether Baker was within the scope of her employment when she was injured. Eligibility for benefits under Section 301(c) of The Pennsylvania Workmen's Compensation Act,*fn1 is dependent on an injury occurring in the course of employment,

[ 63 Pa. Commw. Page 416]

    which includes an injury in the furtherance of an employer's business.

The only finding of fact*fn2 made by the referee relative to this issue is:

2. Claimant worked the evening of January 13, 1977 performing her regular job responsibilities in the kitchen. By the time she left, it was approximately 1 o'clock A.M. or 1:30 A.M. -- thus making it the morning of January 14, 1977.

We cannot determine whether Baker was in the course of her employment based on the record before us.

The Board's order affirming the referee's determination added additional findings of fact*fn3 without taking additional testimony. Although it is harmless error for the Board to make an additional finding without "hearing additional evidence if the new finding is actually encompassed by a finding of the referee [,]" Gulf Oil Co. v. Workmen's Compensation Appeal Board, 54 Pa. Commonwealth Ct. 443, 447, 421 A.2d 863, 865 (1980), the Board's findings here are clearly not encompassed by the referee's findings. The referee's findings are devoid of the facts necessary to support his legal conclusion as to the scope of employment.

[ 63 Pa. Commw. Page 417]

We are constrained to remand this case for fact findings on the issue of whether Baker was within the scope of her employment when she was injured.

Order

The order of the Workmen's Compensation Appeal Board, No. A-76132, dated March 20, 1980 is vacated and remanded for proceedings consistent with this opinion.

Disposition

Vacated. Case remanded.

Dissenting Opinion by Judge Blatt:

I must respectfully dissent.

I believe that the Board's additional findings of fact that the claimant (1) finished work at 12:30 a.m., and (2) that she joined her daughter in the restaurant are harmless error inasmuch as such findings of fact were encompassed by the referee's findings. Gulf Oil Co. v. Workmen's Compensation Appeal Board, 54 Pa. Commonwealth Ct. 443, 421 A.2d 863 (1980); Firestone Tire and Rubber Co. v. Workmen's Compensation Appeal Board, 40 Pa. Commonwealth Ct. 142, 396 A.2d 902 (1979). The referee specifically found in footnote No. 2 that the claimant

     worked the evening of January 13, 1977 performing her regular job responsibilities in the kitchen. By the time she left, it was approximately 1 o'clock A.M. or 1:30 A.M. -- thus making it the morning of January 14, 1977. She left her place of employment, and got into her car which was parked on the parking lot of Pypers Restaurant. The car would not start, and the Claimant's daughter and friend came over (they had been in the restaurant) and they tried to help her start the car. (Emphasis added.)

Further, in finding of fact 11, the referee again specifically found that the claimant's

[ 63 Pa. Commw. Page 418]

    usual working hours were between 4:45 P.M. and 1:00 or 1:30 A.M. I also find as a fact, that because she was an employee of the Defendant, she was allowed to continually park on the Defendant's parking lot whenever she drove to work.

Obviously, such facts provide a sufficient basis for a course of employment conclusion. See, e.g., Workmen's Compensation Appeal Board v. Borough of Plum, 20 Pa. Commonwealth Ct. 35, 340 A.2d 637 (1975).

Inasmuch as these factual findings encompass the Board's additional findings, I believe, therefore, that a remand is inappropriate here and would affirm the order of the Board.


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