Del Rossi v. Pennsylvania Turnpike Commission

Dissenting Opinion by

Hoffman, J.:

I respectfully dissent.

*492The Majority concludes that the fatal injury here involved was not compensable because the claimant failed to establish that the decedent was killed on the “premises” of his employer, as that term is used in §301 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §411. I disagree.

It is the fundamental duty of the court to decide questions of law in workmen's compensation cases. Whether an employee's injury occurred on the premises of his employer is a legal, and not a factual determination. See Giallonardo v. St. Joseph's College, 177 Pa. Superior Ct. 87, 111 A. 2d 178 (1955). "To be considered as happening on the `premises' of the employer, the accident must have occurred on property so connected with the business in which the employer is engaged as to form a component integral part of it." Feeney v. N. Snellenburg & Co., 103 Pa. Superior Ct. 284, 157 A. 379 (1931). In applying this principle specifically to public highway and turnpike cases, we have held that the premises include that portion of the road upon which the employee himself worked. See Kattera v. Burrell Construction & Supply Co., 152 Pa. Superior Ct. 591, 33 A. 2d 498 (1943).

That holding was followed in Babine v. Lane Construction Corp., 153 Me. 339, 138 A. 2d 625 (1958), a case very similar to the present one. In Bobine, the decedent was killed on the Maine Turnpike, approximately 16 miles from his work station and 20 minutes before he was to report for work. The Supreme Court of Maine held the injury compensable, relying on Kattera v. Burrell Construction & Supply Co., supra, for the proposition that the premises of the employer include that portion of the turnpike where the decedent has been working. The Court said: “It is true that the decedent had many miles left to travel before he would arrive where his roller was parked, but that is to say no more than that the ‘premises’ here was ex*493tensive.” The ease before us now presents an even stronger argument for compensation, because the accident occurred within one mile of decedent’s station and 15 minutes before he was to report for work. See also Hesselman v. Somerset Community Hospital, 203 Pa. Superior Ct. 313, 201 A. 2d 302 (1964) ; Shaffer v. Somerset Community Hospital, 205 Pa. Superior Ct. 419, 211 A. 2d 49 (1965).

In the instant case, the Board stated that: “[I]t is clear that at the time of the accident the decedent was not upon the premises of his employer. ... A reasonable and logical interpretation of these circumstances requires us to find that the premises of the defendant was the Plymouth Meeting maintenance headquarters and not any location on the Turnpike.” The majority, in reinstating the Board’s order denying compensation, stated that: “We can find no appellate cases setting forth a definition of ‘premises’ as specifically applied to an employee of the turnpike. . . . Clearly the entire turnpike was not the ‘premises’ as to this employe. . . . All that was shown was that the decedent worked out of the Plymouth Meeting Maintenance Headquarters. ... No evidence was in the case which would justify a finding as to the area serviced by those headquarters. . . .”

In light of the Kattera case and the record before us, the Board’s findings reflect a parochial definition of the term “premises” in situations involving transitory or mobile employment. Such an unrealistic and restrictive approach fails to recognize that present day communications and transportation have transformed that term into a flexible concept which may comprise an area of many miles. In my view the lower court was quite correct in its statement that: “ . . . [I]f the portion of the turnpike upon which Hugh J. Del Bossi met his death is the same portion serviced by the Plymouth Meeting Maintenance Headquarters, then the *494area is embraced in the premises term of the Compensation Act, . . .”

The record before us suggests that decedent’s injury was compensable within the meaning of the Act. For example, he was killed within one mile of the station where he was to report to work. Moreover, the accident occurred within 15 minutes of the time he was to report to work. Finally, the testimony indicates that he worked along a limited area of the turnpike which very likely encompassed the spot where the accident occurred.1 On this record, minimal fairness requires that the Board make further findings of fact in order to determine whether the accident occurred within the decedent’s work area. More specifically, the Board must determine, inter alia, (1) the area of the turnpike normally serviced from this station and (2) the specific area of the turnpike upon which the decedent worked. Only after such facts are established can the court on appeal make a reasonable and reasoned determination of the difficult legal issue confronting it in this case.

To obtain these facts, the lower court remanded the record to the Board for “further consideration.” The Workmen’s Compensation Act empowers the court, in *495its discretion, to order the taking of additional testimony and an amplification of the Board’s findings.2 If tke court finds that the facts are sufficient to enable it to review a determination of law, it may reverse such finding without sending the record back to the Board for further testimony. In the instant case, it is clear to me, as it must have, been to the lower court, that substantial justice requires that the Board take additional evidence. Since nothing in the trial court’s opinion constitutes a direction to the Board to find facts in accordance with its opinion, the court did not exceed its discretionary authority.3

1 would affirm the order of the court below.

Watkins, J., joins in this dissenting opinion.

The decedent’s supervisor testified:

“Q. What was his occupation, what did he do?
“A. He was an electrician’s helper.
“Q. And what did that entail?
“A. On a lamp check which he was working each week four hours, he would check the lights at the interchange, that was his job.
“Q. How do your employees record their time, how would he have recorded his time?
"A. Ou a daily — in other words mileage wise. In other words there are two men worked in that truck. That truck comes in, they cheek the mileage, and he has a thirty-five to forty mile run, and when he stopped and when he started, that’s how we figure, we know he’s out working.”

See §427 of the Workmen's Compensation Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §877, which provides that: “Any court before whom an appeal is pending from any action of the board may remit the record to the board for more specific findings of fact, if the findings of the board or referee are not, in its opinion, sufficient to enable it to decide the question of law raised by the appeal.”

. Our Court has often stated that an order of the Court of Common Pleas remitting a record to the Compensation Board is interlocutory and not appealable. See Barber v. Fleming-Raugh, Inc., 208 Pa. Superior Ct. 230, 222 A. 2d 423 (1966). Only where the lower court has remanded the case to the Board with instructions to find facts in accordance with the opinion of the court have we found that an appeal may be taken therefrom. See Messikomer v. Baldwin Locomotive Works, 178 Pa. Superior Ct. 537, 115 A. 2d 853 (1955).