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CITY PITTSBURGH v. WORKMEN'S COMPENSATION APPEAL BOARD (MARUNICH) (08/14/87)

decided: August 14, 1987.

CITY OF PITTSBURGH, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MARUNICH), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Arthur Marunich v. City of Pittsburgh, No. A-88519.

COUNSEL

Irvin S. Bails, with him, Thomas O. Schmitt, Baskin, Flaherty, Elliott & Mannino, for petitioner.

Bryan Campbell, for respondent.

Judges Barry and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry. Judge Palladino dissents.

Author: Barry

[ 108 Pa. Commw. Page 478]

The City of Pittsburgh (the City) appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a decision of the referee awarding benefits to the claimant, Arthur Marunich, a City police officer.

On December 24, 1981, claimant and his wife entered the Eat'n Park Restaurant which is located just

[ 108 Pa. Commw. Page 479]

    over the City line in the Borough of Dormont. Claimant had recently come off duty; except for a denim jacket he was wearing, claimant was in uniform. Upon entering the restaurant, claimant noticed that another City police officer, Richard Puleo, was sitting in another booth with his wife. A disturbance broke out among some individuals in a booth next to Puleo's and, in the ensuing scuffle, an individual was pushed into Mrs. Puleo. At this point, Puleo attempted to break up the fight and was punched in the face by one of the combatants. Claimant then entered the fray in an attempt to assist Mr. Puleo. Claimant was holding one individual when the Dormont police arrived. In the mass confusion, claimant was struck in the eye with a blackjack by a Dormont police officer. He sustained a severe laceration which required stitches and left a permanent scar.

The claimant filed a claim petition, seeking benefits for permanent disfigurement of the face under Section 306(c) of The Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 513(22) (Supp. 1987). Following a hearing, the referee awarded benefits for a period of thirty-five weeks. The City appealed to the Board which affirmed and this appeal followed.

Our scope of review is limited to determining whether an error of law has been committed, whether constitutional rights have been violated or whether a necessary finding of fact is supported by substantial evidence in the record. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). On appeal, the City raises but one issue, that the claimant was not within the scope of his employment when he sustained the injury. The question of whether an employee is within the scope of employment is a legal question, subject to our review. City of Pittsburgh v. Workmen's Compensation Appeal Board (Schiller), 94 Pa. Commonwealth Ct. 156, 502 A.2d 800

[ 108 Pa. Commw. Page 480]

(1986). The City believes the claimant was not within the scope of his employment because he was outside the jurisdictional limits of ...


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