Carretti v. Schwanger

CIRILLO, President Judge,

dissenting:

Since I believe that the appellant, Catherine A. Caretti, was acting in furtherance of her employer’s business or affairs when she was injured, I would affirm the trial court’s decision. Hence, I dissent.

The appellant was employed by Moyer’s Truck Service. Her duties were primarily clerical and were performed on the employer’s premises. The appellant clearly was not required to obtain lunches for other employees, yet, on occasion the appellant would get lunch for the other employees.

On the date of the accident, appellant had informed her employer and the other employees that she was going to a McDonald’s restaurant. The appellant asked her fellow employees if they wanted anything from McDonald’s. While the appellant claims that the other employees gave her money to pay for their lunches, the employer maintains that he gave the appellant money to buy lunch for the other employees. The employer also told the appellant that she could ride to McDonald’s with another employee, Scott Schwanger, who had to leave the premises to get parts for *58the employer. Before leaving her place of employment, the appellant punched out. On the way to McDonald’s, the company owned vehicle driven by Schwanger was involved in an accident and the appellant was injured.

The appellant filed suit against her employer seeking damages for her injuries sustained in the accident. The case proceeded to trial, and at the close of the appellant’s case, the employer moved for a compulsory nonsuit, see Pa.R.C.P. 230.1, stating that since appellant’s injuries were sustained in the course of her employment, the Workmen’s Compensation Act (“Act”) provided the exclusive remedy and that consequently her common law action was barred. See 77 P.S. §§ 411, 481(a). The trial court granted the employer’s motion for a nonsuit, post-trial motions were denied and this timely appeal followed. On appeal, the appellant essentially argues that the trial court erred in granting the employer’s motion for a nonsuit.1

A motion for a compulsory nonsuit permits a defendant to test the sufficiency of a plaintiff’s evidence. Storm v. Golden, 371 Pa.Super. 368, 373, 538 A.2d 61, 63 (1988). “A court may grant a compulsory nonsuit if ‘the jury, viewing all the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of a cause of action have been established.’ ” Brock v. Owens, 367 Pa.Super. 324, 328, 532 A.2d 1168, 1170 (1987) (quoting Mazza v. Mattiace, 284 Pa.Super. 273, 277, 425 A.2d 809, 811-812 (1981)). The grant of a compulsory nonsuit will be affirmed on appeal only where it is inconceivable, after viewing all the evidence in the light most favorable to the plaintiff, that *59the controlling issue could be determined in plaintiffs favor. Stevens v. Commonwealth Department of Transportation, 89 Pa.Commw. 309, 311, 492 A.2d 490, 492 (1985).

The Act provides the exclusive remedy for an individual whose injuries fall within the purview of the Act. 77 P.S. § 481(a); Speight v. Burens, 371 Pa.Super. 478, 480, 538 A.2d 542. 543 (1988). An employee’s injury is compensable under Act if the injury arises “in the course of his [or her] employment.” 77 P.S. § 411(1). “The term ‘injury arising in the course of employment’ shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere ...” 77 P.S. § 411(1). See Speight, supra. Thus, for an employee’s injury to be compensable under the Act the employee must demonstrate that the injury “arose in the course of his [or her] employment and that it was causally connected with his [or her] work.” Speight, 371 Pa.Super. at 483, 538 A.2d at 544. Whether an injury arose in the course of one’s employment is a question of law to be determined on the basis of the applicable facts. Id. Further, the courts have clearly stated that the term “course of employment,” as used in the Act, shall receive a liberal construction. Id. See Epler v. North American Rockwell Corp., 482 Pa. 391, 393 A.2d 1163 (1978); Mann v. City of Philadelphia, 128 Pa. Commw. 499, 563 A.2d 1284 (1989).

Here, the appellant was an employee whose functions, most often, required her presence in the office. Consequently, she was a “stationary employee,” not a “travelling employee.” The course of employment for a “travelling employee” is broader than that of a “stationary employee”. Speight, 371 Pa.Super. at 483, 538 A.2d at 544. There is a presumption that the “travelling employee” was engaged in the furtherance of his or her employer’s business at the time the injury occurred. Id. However, where as here, the employee works primarily at the business site the phrase “course of employment” is narrowly interpreted. Id.

*60In such cases the general rule is that a trip away from the employer’s premises is unrelated to the employer’s business, and an injury occurring during that time period is not sustained “in the course of employment” within the meaning of the [Act].

Id. See also 82 Am Jur 2d § 272 (1976). In Peccon v. Francis Market, 207 Pa.Super. 36, 215 A.2d 261 (1965), the employee of a local market was injured when she tripped and fell on a public sidewalk during her lunch period for which she was not paid. This court denied the employee workmen’s compensation benefits stating:

[W]hen claimant left her employer’s premises, with the express or implied consent of her employer, and selected her own place to lunch, her employment ceased and she was on a personal mission which had no relation to the business in which her employer was engaged. From the time of her departure until her return to her place of employment, she was not “in the course of employment” as contemplated by the Compensation Act. Her status was not affected whether she selected her own lunch hour or whether she had a fixed time for lunch. Her leaving the premises was a matter that was purely personal and bore no relation to the duties which she was required to perform.

Peccon, 207 Pa.Super. at 39, 215 A.2d at 262-263. In Speight, the employee was injured while returning from lunch with his employer. Speight, 371 Pa.Super. at 484, 538 A.2d at 545. While at lunch, Speight discussed business with his employer. Id. Consequently, this court found that the employee’s injuries which occurred while returning from this business lunch arose “in the course of employment,” and that the employee’s common law action against his employer was barred by the Act. Id.

In Peccon, it was fairly clear that the employee was on a purely personal venture, unrelated to her employment. Conversely, in Speight it was equally clear that the employee, who was injured while returning from a business luncheon with his employer, was engaging in the furtherance of *61the employer’s business or affairs. Instantly, we are faced with a more difficult set of circumstances. Nonetheless, we must determine whether the employee’s trip to McDonald’s was in furtherance of her employer’s affairs, or was a purely personal venture unrelated to her employment. See Speight, supra; Peccon, supra. The majority concludes that the facts of this case did not turn an essentially personal trip into a "business” one. I disagree.

Initially, we, in accordance with our standard of review, must assume that the employees gave the appellant their own money to purchase lunch. Further, it is clear that the employee “punched out” before she left with Schwanger and that consequently she was not being paid during her lunch hour. It is also apparent that purchasing the other employees’ lunches was not part of the appellant’s job. However, appellant, on this occasion, was getting lunch for the remaining employees while those employees continued to work. Further, the appellant, at the employer’s suggestion, rode to McDonald’s in a company owned vehicle with another employee while that employee was on a business errand.

Consequently, my review of the record in the requisite light reveals that the circumstances surrounding the employee’s trip to McDonald’s had both personal and business attributes. Because we are required to give the Act a liberal construction, Speight, supra, I conclude that the appellant was acting in furtherance of the employer’s affairs while, at her employer’s suggestion, she was riding in a company owned vehicle to obtain lunch for herself and the other employees who remained on the work premises. Therefore, I would affirm the trial court’s decision to grant the employer’s motion for a nonsuit.

. Appellant’s statement of questions involved is as follows:

I. Did the trial judge err when he overruled the decision of Judge Dowling denying the Defendants’ motion for summary judgment based solely on the Workmen’s Compensation Act and granted the Defendant’s motion for nonsuit based solely on the Workmen's Compensation Act?

II. Did the trial judge err when he granted the Defendants’ motion for nonsuit thereby depriving the Plaintiff of the jury trial she had demanded?

III. Did the evidence entitle the Plaintiff to go to the jury?