Pypers v. Commonwealth

Dissenting Opinion by

Judge Blatt :

I must respectfully dissent.

I believe that the Board’s additional findings of fact that the claimant (1) finished work at 12:30 a.m., and (2) that she joined her daughter in the restaurant are harmless error inasmuch as such findings of fact were encompassed by the referee’s findings. Gulf Oil Co. v. Workmen’s Compensation Appeal Board, 54 Pa. Commonwealth Ct. 443, 421 A.2d 863 (1980); Firestone Tire and Rubber Co. v. Workmen’s Compensation Appeal Board, 40 Pa. Commonwealth Ct. 142, 396 A.2d 902 (1979). The referee specifically found in footnote No. 2 that the claimant

worked the evening of January 13, 1977 performing her regular job responsibilities in the kitchen. By the time she left, it was approximately 1 o’clock A.M. or 1:30 A.M. — thus making it the morning of January 14,1977. She left her place of employment, and got into her car which was parked on the parking lot of Pypers Restaurant. The car would not start, and the Claimant’s dau,ghter and friend came over (they had been in the restaurant) and they tried to help her start the car. (Emphasis added.)

Further, in finding of fact 11, the referee again specifically found that the claimant’s

*418usual working hours were between 4:45 P.M. and 1:00 or 1:30 A.M. I also find as a fact, that because she was an employee of the Defendant, she was allowed to continually park on the Defendant’s parking lot whenever she drove to work.

Obviously, such facts provide a sufficient basis for a course of employment conclusion. See, e.g., Workmen’s Compensation Appeal Board v. Borough of Plum, 20 Pa. Commonwealth Ct. 35, 340 A.2d 637 (1975).

Inasmuch as these factual findings encompass the Board’s additional findings, I believe, therefore, that a remand is inappropriate here and would affirm the order of the Board.