Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Joseph D'Agata v. D'Agata National, Inc., No. A-82183.
Charles S. Katz, Jr., Swartz, Campbell & Detweiler, for petitioners.
Joseph F. Mulcahy, Jr., for respondent, Joseph D'Agata.
President Judge Crumlish, Jr. and Judges Williams, Jr. and Colins, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 84 Pa. Commw. Page 528]
D'Agata National Inc., and Protective Insurance Company (D'Agata National) appeal a Workmen's Compensation Appeal Board decision affirming a referee's award for the total loss of sight in Joseph D'Agata's left eye. We affirm.*fn1
[ 84 Pa. Commw. Page 529]
D'Agata was shot twice in the head and four times in the abdomen while entering a mobile luncheonette. The luncheonette was located on the employer's property, adjacent to the work premises. The referee found that the assailant appeared to be in the act of committing a robbery. D'Agata was awarded total disability benefits from December 30, 1975 until approximately January 3, 1977, and partial benefits thereafter.
D'Agata National contends that D'Agata was not in the course of his employment when his injury occurred because he was not on premises "occupied by or under the control of employer" nor on property upon which the "employer's business or affairs" were carried on within the meaning of Section 301(c)(1) of The Pennsylvania Workmen's Compensation Act (Act).*fn2 We disagree.
[ 84 Pa. Commw. Page 530]
"'Arising in the course of his employment,' by definition in the Section, includes all injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether or not he is actually on the employer's premises."*fn3 Workmen's Compensation Appeal Board v. Borough of Plum, 20 Pa. Commonwealth Ct. 35, 39, 340 A.2d 637, 639 (1975). The record reveals that D'Agata left his office in order to meet with potential customers. He entered the luncheonette momentarily to have a cup of coffee. Minor deviations for personal comfort or leisure will not break the chain of conduct in the "course of employment" even if the employee is off the work premises. Id. at 40, 340 A.2d at 640. There is no evidence to support the employer's contention that D'Agata's workday was over, or that he was not furthering the employer's business.
D'Agata National's second contention is that D'Agata provoked the robber by attempting to grab his gun and was, therefore, the victim of an assault for reasons personal to the assailant.*fn4 The victim of a personal assault is excluded from the definition of "injury" within the meaning of Section 301(c)(1) of the Act. This Court, however, has previously held that, where there is no pre-existing animosity between ...