Appeals from the Order of the Workmen's Compensation Appeal Board in case of Ernest L. Rittner, Deceased, Janice, widow v. William F. Rittner Co., No. A-80721.
Ronald M. Katzman, Goldberg, Evans & Katzman, P.C., for petitioner, William F. Rittner Co.
Robert J. Stewart, with him Patricia A. Butler, Liverant, Senft and Cohen, for respondents, Ernest L. Rittner, deceased, by Janice Rittner, his widow.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 76 Pa. Commw. Page 597]
This case consolidates two appeals from the decision and order of the Workmen's Compensation Appeal Board (Board). The William F. Rittner Co. (Employer) appeals from the Board's affirmance of a referee's decision granting compensation to the widow and minor children of Ernest L. Rittner (Decedent), who was killed in a motor vehicle accident while driving a van owned and maintained by the Employer. (No. 3040 C.D. 1981) The Decedent's widow (Claimant) appeals from the Board's affirmance of the referee's denial of the Claimant's petition for attorneys fees and penalties under Section 440 of The Pennsylvania Workmen's Compensation Act.*fn1 (No. 3148 C.D. 1981)
The factual context of the case can be drawn from the referee's findings of fact, which have not been challenged by either party. Those findings indicate that the Decedent, at the time of his death on
[ 76 Pa. Commw. Page 598]
December 20, 1978, was a 30% stockholder and vice-president of operations for the Employer.*fn2 The Employer is a supplier of food products to institutions such as hotels, restaurants, and schools. In his capacity as a vice-president of operations, the Decedent was responsible for ensuring deliveries and for management of the Employer's personnel, warehouse and equipment. As part of the contract of employment, the Employer supplied the Decedent with a station wagon for the personal use of himself and his family, and a utility van which the Decedent drove back and forth to work each day. The Decedent was on call 24 hours a day, and utilized the van not only during the regular work day, but also after working hours to make special deliveries, and to respond to emergencies at the Employer's premises and out on the road.
With respect to the circumstances of the fatal accident, the referee found that the Decedent was driving alone in the van when the accident occurred sometime between 5:15 and 5:25 p.m. on December 20, 1978. According to the referee's findings, the Decedent left the Employer's premises sometime between 4:40 and 4:55 p.m. and was headed home at the time of the accident. Although the road on which the accident occurred was not the most direct route to the Decedent's residence, the referee concluded that the Decedent probably deviated from the most direct route due to hazardous driving conditions. On the basis of these findings, the referee concluded as a matter of law that the Decedent was, at the time of the accident, engaged in the scope of his employment as defined by Section 301(c)(1) of the Workmen's Compensation
[ 76 Pa. Commw. Page 599]
Act,*fn3 and that his fatal injuries are therefore compensable.
The crux of the Employer's argument is that the Claimant failed to prove that at the time of the accident the Decedent was actually engaged in the business or affairs of his employer. The Employer challenges the proposition announced by the Board that "[i]f the employer provides a van for use in the business after the employee reaches his home, it can only follow as a matter of law that the employee is within the scope of his employment while driving it home." Whether that ...