Action, Inc. v. Workmen's Compensation Appeal Board

Dissenting Opinion by

Senior Judge Barbieri:

Most respectfully I must record my disagreement with the opinion and decision of the majority and record my dissent.

As a corporate officer, decedent takes his status as an employee, not under Section 301(c)(1) where the majority puts him, but by virtue of the amendment to Section 104, 77 P.S. §22, enacted in 1956, whereby every executive officer of a corporation “shall be an employe of the corporation ... ,” so that the “premises” and other related cases that form the basis for the opinion of the *88majority are not applicable. On the contrary, a corporate officer is an employee at all times regardless of the occasion or location, just so long., as he is engaged in furthering the business of the corporation. The result is that his employment status , is like that of a “roving employe” who is deemed to.be in the course of his employment from the time when he leaves his home until he is back in his home. Decedent had not yet arrived in his home and, therefore, his injury and death where they occurred on his driveway were compensable. Cohen v. Central Home Furniture Co., 146 Pa. Superior Ct. 499, 23 A.2d 70 (1941). Furthermore, it. should be noted that employees such as the decedent are deemed by presumption to continue in employment. Wolfinbarger v. Addressograph-M, 188 Pa. Superior Ct. 136, 146 A.2d 309 (1958)..

Since deceased was an executive officer and an employee by virtue of Section 104, with' scope of employment as indicated, and was not a mere, employee, as the majority has concluded, under. Section 301(c)(1), I would under the circumstances, in volved here affirm the order of the Workmens Compensation Appeal Board in affirming what I believe to be a proper decision' by the referee.