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THOMAS HALL v. MIDLAND INSURANCE COMPANY (09/09/83)

filed: September 9, 1983.

THOMAS HALL
v.
MIDLAND INSURANCE COMPANY, APPELLANT. THOMAS HALL V. PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY. APPEAL OF MIDLAND INSURANCE COMPANY. PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY V. MIDLAND INSURANCE COMPANY, APPELLANT. THOMAS HALL, APPELLANT, V. MIDLAND INSURANCE COMPANY. THOMAS HALL, APPELLANT, V. PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY



No. 639 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 2537 December Term, 1978, No. 640 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1252 December Term, 1978, No. 641 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1351 April Term, 1980, No. 788 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 2537 December Term, 1978, No. 789 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1252 December Term, 1978.

COUNSEL

Michael P. O'Connor, Philadelphia, for appellant (at Nos. 639, 640 and 641) and for appellee (at No. 788).

James L. Womer, Philadelphia, for appellant (at Nos. 788 and 789) and for appellee (at Nos. 639 and 640).

James J. Donohue, Philadelphia, for participating party (at No. 639) and for appellee (at Nos. 640, 641 and 789).

Cavanaugh, Wieand and Hoffman, JJ. Hoffman, J., files a dissenting opinion.

Author: Wieand

[ 320 Pa. Super. Page 284]

Thomas Hall was injured as a result of an automobile accident which occurred while he was driving home from work in a vehicle owned by his employer. Midland Insurance Company, the insurance carrier providing no-fault coverage on the employer's vehicle, contends that the accident occurred while Hall was within the scope of his employment and that his only claim against the employer is for workmen's compensation benefits. If no-fault benefits are recoverable, it argues, the liability therefor must be assumed by Pennsylvania Manufacturers Association Insurance Company, the no-fault carrier providing coverage for Hall's personal automobile. Whether Hall was within the scope of his employment at the time of the accident was submitted to the trial court on cross motions for summary judgment after counsel had stipulated that the facts were not in dispute and had been developed fully during discovery. The trial court held that Hall had not been in the scope of his employment at the time of the accident and entered summary judgment directing the payment of nofault

[ 320 Pa. Super. Page 285]

    benefits by Midland Insurance Company. This appeal followed.

Whether an employee is in the scope of employment is a question of law to be decided upon all the facts in a particular case. Sylvester v. Peruso, 286 Pa. Super. 225, 227-228, 428 A.2d 653, 655 (1981); Bethlehem Steel Corporation v. Workmen's Compensation Appeal Board, 56 Pa. Commw. 438, 443, 425 A.2d 473, 475 (1981). The undisputed facts submitted to the trial court in this case established that Thomas Hall had been employed as a salesman by Peltex, Inc., which provided him with a leased car. Hall was permitted to use this vehicle for business as well as for personal travel. On Tuesday, December 13, 1977, Hall left his employer's office at the end of the workday and was on his way home, driving his employer's vehicle, when he was involved in the accident which caused his injuries.

Hall's normal hours of work were from 9:00 a.m. to 5:00 p.m. He would generally leave from his home in the morning to see customers and would arrive at his employer's office in the afternoon. He would work at the office until 5:00 p.m., frequently making telephone calls and arranging appointments for the following day. On some occasions, he would visit a customer after he had left the office at 5:00 p.m.; but on the evening of the accident, he had no calls to make and was on his way home. In fact, the samples, order forms, etc. which he carried with him during business hours had been left at the office because Hall intended to see no customers that evening and planned to go directly to the office on the following morning. He did not take any other work home. Hall did not have an office in his home and did not make telephone calls to customers from his home. Although Hall was permitted to use his employer's vehicle for personal matters, he was reimbursed only for expenses incurred while using the car for business, and it was for that purpose that he had a company credit card.

"As a general rule the act of going to or returning from work does not constitute a ...


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