Del Rossi v. Pennsylvania Turnpike Commission

Opinion by Jacobs, J., The sole issue in this workmen’s Compensation case is whether or not decedent was in the course of his employment at the time of his accidental death. The referee decided that he was. The board decided that claimant had failed to prove that decedent was in the course of his employment. The court below reversed the board and sent the case back to the board for further consideration. The defendants have appealed. The burden was on the claimant to prove all elements of his claim. Ewing v. Alan Wood Steel Co., 138 Pa. Superior Ct. 519, 12 A. 2d 121 (1940), and where the decision of the board is against the party having the burden of proof the question before the court on appeal is to determine whether the board's findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of the competent evidence. Rodgers v. Methodist Episcopal Hospital, 188 Pa. Superior Ct. 16, 145 A. 2d 893 (1958). — 488 — The decedent was employed by the Pennsylvania Turnpike Commission at its maintenance depot at Plymouth Meeting. lie was an electrician helper or lamp checker, and on Thursday, May 9, 1963 he was scheduled to work from 8 p.m. to midnight at the task of checking lamps on one of the tnrnpike interchanges. Such checking was always done by the decedent in a truck furnished by the defendant and kept at the maintenance depot. On the night in question at approximately 7:45 p.m. the decedent drove his privately owned vehicle across the medial barrier on the turnpike and was killed. He ivas headed away from the maintenance depot. This accident occurred approximately one mile east of the Plymouth Meeting maintenance building where decedent had been seen one-half hour earlier. Section 301 of The Pennsylvania Workmen’s Compensation Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §411, which is the controlling statute, provides, inter alia, as follows: “The term ‘injury by an accident in the course of his employment’ . . . shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employe’s presence thereon being required by the nature of his employment.” The decedent was not shown to be engaged in the business of his employer at the time of his death, going to or from work not being considered as furthering the affairs of the employer in the absence of special circumstances not here present. Palko v. Taylor-McCoy — 489 — Coal & Coke Co., 289 Pa. 401, 137 A. 625 (1927); Ristine v. Moore, 190 Pa. Superior Ct. 610, 155 A. 2d 456 (1959). Therefore, compensation could only be awarded if decedent was injured on the premises of the employer "the employe's presence thereon being required by the nature of his employment." 77 P.S. § 411, supra. The board concluded that claimant had not proven decedent was on the “premises” when injured. The court below in reversing the board determined that decedent was killed on the “premises” of the employer if he was on the portion of the turnpike serviced by Plymouth Meeting Maintenance Headquarters and that his presence was required there by the nature of his employment. In our opinion this was error under the facts of this case. The meaning of the word "premises" is a question of law and has been defined as "limited to the property of the employer used in connection with the actual place of work where the employer carries on the business in which the employe is engaged." Lints v. Delaware Ribbon Mfgrs., 173 Pa. Superior Ct. 540, 542-3, 98 A. 2d 643 (1953). "The word `premises' in the Act does not include all property of the employer `but does embrace that used in connection with the actual place of work where the employer carries on the business in which the employee is engaged' . . . ." Hopwood v. Pittsburgh, 152 Pa. Superior Ct. 398, 403, 33 A. 2d 658 (1943). See Vardzel v. Dravo Corp., 402 Pa. 19, 165 A. 2d 622 (1960); Young v. Hamilton Watch Co., 158 Pa. Superior Ct. 448, 45 A. 2d 261 (1946); Feeney v. N. Snellenburg Co., 103 Pa. Superior Ct. 284, 157 A. 379 (1931). As we said in Young v. Hamilton Watch Co., supra, at page 450: "We have frequently said that there is a distinction between `premises' of the employer and `property' of the employer, and that they are not always synonymous. The term `premises' has a — 490 — narrower meaning than the term `property', when used in compensation cases." We can find no appellate cases setting forth a definition of “premises” as specifically applied to an employee of the turnpike, or, for that matter, to an employee of the highways department. Clearly the entire turnpike was not the “premises” as to this employee and we agree with Judge McDermott’s statement to that effect. The court below did decide that “premises” would include that portion of the turnpike serviced by Plymouth Meeting Maintenance Headquarters. But-we need not pass on the merits of that rule because there was no evidence sufficient to bring this case within such a rule or any other rule short of including the entire turnpike system in the premises. All that was shown was that decedent worked out of Plymouth Meeting Maintenance Headquarters. No evidence was in the case which would justify a finding as to the area serviced by those headquarters. Similarly the lower court’s further conclusion that decedent’s presence in the undefined area was required by the nature of his employment, apparently on the ground that the turnpike was the only means of access to the Maintenance Headquarters, was completely without evidentiary support.1 Neither we nor the court below, nor the board, can supply evidence nor create inferences from nonexistent facts to achieve a humanitarian result. Thus the findings of fact were entirely consistent with the conclusion of the board that claimant had failed to prove that decedent was killed in the course of his employment. There was no evidence to support — 491 — a contrary conclusion and the board must be sustained.2 Appellee has moved to quash the appeal as interlocutory because Judge McDERMOTT remanded the case to the board for further consideration. However, when the court below reversed the board's conclusion of law that claimant had not sustained an accidental death in the course of his employment its practical effect was to direct an award in favor of claimant. The decision was solely on a matter of law and since there was no direction that additional testimony be taken there was nothing the board could do except make an award. Such an order is appealable. Leftwrich v. Colonial Aluminum Smelting Corp., 184 Pa. Superior Ct. 622, 136 A. 2d 182 (1957); Parisi v. Freedom Oil Co., 150 Pa. Superior Ct. 260, 27 A. 2d 255 (1942); Strickland v. Baugh & Sons Co., 139 Pa. Superior Ct. 273, 11 A. 2d 547 (1940). Appellee’s motion to quash the appeal is dismissed, the order of the court below is reversed and the order of the Workmen’s Compensation Board is reinstated. Footnotes [1] Since the turnpike is a public highway it is important to determine whether the employee's presence was required there by reason of his employment or as a member of the traveling public. See Eberle v. Union Dental Co., 390 Pa. 112, 134 A. 2d 559 (1957). [2] While it is true that whether decedent was in the course of his employment at the time of his fatal injury is a question of law, it must be determined on the basis of the facts. Newman v. Congregation of Mercy and Truth, 196 Pa. Superior Ct. 350, 175 A. 2d 160 (1961). Similarly, the question of law to be decided in determining if an employee was injured on the "premises" is whether the facts as disclosed by the evidence establish that the place was a part of the premises. Giallonardo v. St. Joseph's College, 177 Pa. Superior Ct. 87, 111 A. 2d 178 (1955). The only facts before the board and the court were those stated at the beginning of this opinion and it was on the basis of those facts that it had to be determined whether or not this decedent was killed on his employer's premises.