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ROADWAY EXPRESS v. WORKMEN'S COMPENSATION APPEAL BOARD (SEELEY) (11/02/87)

decided: November 2, 1987.

ROADWAY EXPRESS, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SEELEY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Theodore R. Seeley, deceased, Agneta Seeley, Widow v. Roadway Express, No. A-90266.

COUNSEL

Michael I. Levin, Cleckner and Fearen, for petitioner.

Terry S. Hyman, Angino & Rovner, P.C., for respondent, Theodore R. Seeley, deceased, Agneta Seeley, widow.

Judge Craig, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 110 Pa. Commw. Page 620]

Roadway Express, Inc., Employer, (Roadway), appeals here an order of the Workmen's Compensation Appeal Board (Board), which affirmed a referee's award of benefits to Agneta Seeley, widow of Roadway's deceased employee, Theodore R. Seeley.

The controlling facts, relatively uncontested, are that Theodore R. Seeley (Decedent) was employed as an over-the-road truck driver for Roadway on December 11, 1981 when he was dispatched by Roadway from his home terminal in Toledo, Ohio, to deliver certain freight to Roadway's terminal in Harrisburg, Pennsylvania, where he arrived on that day at 5:36 p.m. During the mandatory layover of 8 hours between trips, with no subsequent trip yet fixed, Decedent checked into the Holiday Inn where Roadway paid for its drivers' accommodations and from this hotel Roadway also provided

[ 110 Pa. Commw. Page 621]

    certain transportation to and from its terminal. Also, Roadway had a direct line to this hotel, so that drivers on layoff could be reached there on call for assignment to drive in two hours. The direct line arrangement by Employer with Holiday Inn was that the Inn provide a direct call to the room of each driver and, if a driver were not in his room, the hotel would be responsible to find the driver for Roadway.

Later in the evening, decedent walked from the Holiday Inn to a bar-restaurant, "Your Place," frequented by Roadway drivers and Roadway supervisory dispatchers, where he did some eating and drinking. Shortly after midnight on December 12, 1981, Decedent was struck by an automobile while crossing Carlisle Pike, or Route 11, at a point between "Your Place" and the Holiday Inn, suffering injuries which resulted in his death on December 18, 1981, leaving a wife, Claimant, and four dependent children. Among the referee's many findings is a finding that Decedent was presumed to be intoxicated. Finding No. 12. The referee also found as to the point where Decedent suffered his injuries:

8. There are no designated crosswalks at any intersection or any other place on Route 11 between the Holiday Inn, located on the west side of Route 11, and Your Place Restaurant located approximately one mile South of the Holiday Inn on the East side of 11.

There appears to be no evidence presented indicating that Decedent's intoxication was related in any way to his accident.

The referee made the following observations:

The defendant tried to show the deceased took himself out of employment. There was no probition [sic] from drinking during the layover. While it is presumed the deceased would have

[ 110 Pa. Commw. Page 622]

    had an early morning trip which presumably he would have been unable to perform, we do not know that he would have performed it or would not have asked for a delay. It is speculation to assume that the deceased would have reported to work intoxicated and unable to drive. We do not know for sure when he was to report to work.

The deceased was in Harrisburg because of his work duties. Being available at the Holiday Inn furthers his employer's interest. While I do not think that drinking furthered his employer's interest, I do feel that the injury arose due to his employment.

The intoxication of the employee and the resultant injury have, to me, no demonstrated relationship. We have no reason to suppose it was the intoxication that caused the injury. All we know is that the employee was injured. And I do not feel his intoxication would take him out of his employment.

The referee then discussed case law authorities such as Schreckengost v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 587, 403 A.2d 165 (1979), Maher v. Hallmark Cards, Inc., 207 Pa. Superior Ct. 472, 218 A.2d 593 (1956); and cases offered by Defendant: Capitol International Airways v. Workmen's Compensation Appeal Board, 58 Pa. Commonwealth Ct. 551, 428 A.2d 295 (1981), and Bethlehem ...


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