Biddle v. Workmen's Compensation Appeal Board

652 A.2d 807, 539 Pa. 343, 1995 Pa. LEXIS 26

• Court: Supreme Court of Pennsylvania
• Decided: January 17, 1995
• Status: Published

Opinions

OPINION

NIX, Chief Justice.

This is an appeal from the Order of the Commonwealth Court which reversed the Order of the Workmen’s Compensation Appeal Board and reinstated the referee’s grant of benefits pursuant to a fatal claim petition filed by Appellee, Anna Biddle, the widow of the decedent. We granted allocatur limited to the issue of whether the circumstances of the decedent’s employment support a conclusion that the decedent had “no fixed place of work,” such that Appellee would be eligible to receive benefits pursuant to her fatal claim petition.

Appellant, Thomas Mekis & Sons, Inc., builds and repairs bridges. The decedent was employed by Thomas Mekis & Sons, Inc., as a project manager at the time of the accident that resulted in his death. The accident occurred on the evening of December 17, 1985. After work, the decedent, the project superintendent, and a project carpenter went to dinner at a restaurant near the project site. The three men finished their dinner sometime between 7:30 p.m. and 7:45 p.m. at which time the decedent drove his employer’s pickup truck from the restaurant to his home. The decedent’s fatal accident occurred at approximately 9:50 p.m. when the pickup truck collided with another truck. A witness testified that at the time of the accident the weather was cold, windy and snowy.

Appellee filed for compensation, and the referee awarded benefits based upon the conclusion that the decedent was acting within the course of his employment at the time of the accident. The referee’s relevant conclusions of law were as follows:

1. The deceased was in the course of his employment by [Appellant] at the time of his fatal motor vehicle accident.

2. The deceased was unfit to drive a motor vehicle at the time of his fatal accident because of the .12 alcohol concentration in his blood. It was in violation of Pennsylvania law by driving with this blood alcohol concentration.

3. [Appellant] did not meet its burden of showing that the deceased’s violation of law caused his fatal motor vehicle accident.

4. The claimant’s petition should be granted.

(Reproduced Record at 10a).

Appellant appealed to the Workmen’s Compensation Appeal Board (“Board”) which concluded that the decedent was not furthering the business of his employer. (Reproduced Record at 136a). The Board found that, based on the evidence, the ■ decedent was going home from work when he was killed. Id. The Board stated that the burden of proof was on Appellee to establish that the decedent was furthering the employer’s business when the decedent was fatally injured off the employer’s premises. Id. It concluded that Appellee failed to meet that burden. Id.

The Commonwealth Court reversed the Board’s decision and concluded that “the referee’s relevant findings of fact ... [were] supported by substantial evidence, and that the referee correctly determined that the decedent was in the course of employment when he died.” Biddle v. Workmen’s Compensation Appeal Bd. (Thomas Mekis & Sons, Inc.), No. 627 C.D. 1991, slip op. at 3 (Pa.Commw. Nov. 18, 1991). Moreover, the court found that the “no fixed place of work” exception to the “coming and going rule” was applicable and, therefore, reinstated the referee’s grant of benefits. Id. at 6-7. Under, the “coming and going rule,” “an employer is not liable to the employee for compensation for injuries received off the employer’s premise while the employee is travelling to or from work.” Peterson v. Workmen’s Compensation Appeal Bd. (PRN Nursing Agency), 528 Pa. 279, 284, 597 A.2d 1116, 1119 (1991) (citations omitted). The general rule in this Commonwealth is that

an injury sustained while an employee is going to or coming from work does not occur in the course of employment unless one of the following exceptions is shown to exist:

1) claimant’s employment contract includes transportation to and from work;

2) claimant has no fixed place of work;

3) claimant is on a special mission for employer; or

4) special circumstances are such that claimant was furthering the business of the employer.

Id. at 284-85, 597 A.2d at 1119 (quoting Setley v. Workmen’s Compensation Appeal Bd., 69 Pa.Commw. 241, 244, 451 A.2d 10, 11 (1982)). In this case, we are concerned only with the “no fixed place of work” exception.

Appellant argues that a construction site is a fixed place of work under the “coining and going rule”.¹ Appellant, relying on Schick v. Newspaper Guild of Greater Philadelphia, 25 Pa.Commw. 108, 358 A.2d 127 (1976), avers that Appellee bears the burden of proving that an exception to the “coining and going rule” is applicable and that she has failed to present evidence which would support a conclusion that the decedent had “no fixed place of work.”

Appellee argues that the evidence clearly established that the decedent was a project manager who oversaw several jobs at one time and travelled between them. Appellee contends that although the decedent’s last job started in the spring of 1985, there was no evidence that this was the only job site the decedent visited each day.

In Peterson v. Workmen’s Compensation Appeal Bd. (PRN Nursing Agency), 528 Pa. 279, 597 A.2d 1116 (1991), a practical nurse employed by a nursing agency fractured her left leg and left ankle in an automobile accident while travelling to her assigned workplace. The facts revealed that the nursing agency was in the business of supplying personnel to health care facilities on a temporary basis. Id. at 287, 597 A.2d at 1120. We found that “[a] temporary employee, who is employed by an agency, never has a fixed place of work. Consequently, when the agency employee travelled] to an assigned workplace, the employee [was] furthering the business of the agency.” Id. at 288, 597 A.2d at 1120. We held, as a matter of law, that “Appellant had no fixed place of work, when she was injured, and her injury occurred while she was in furtherance of her employer’s business.” Id. at 288, 597 A.2d at 1120-21. Thus, she was entitled to benefits.

This Court also dealt with a similar issue in Hohman v. George H. Soffel Co., 354 Pa. 31, 46 A.2d 475 (1946).² In Hohman, the claimant was a plumber who worked for his employer at various places in and around Pittsburgh. The claimant had no regular place of work but traveled from one job to another as instructed by his employer. Id. at 32-33, 46 A.2d at 476. The claimant in Hohman was struck by a passing car one morning while on route to a job site.

In Hohman, this Court found that the claimant’s “employment required him to be at one place one day on the employer’s business and at a different place, perhaps miles distant, for like purpose on another or even a succeeding day.” Id. at 34, 46 A.2d at 476. In Hohman this Court reasoned:

The service of the employer’s interest in the circumstances shown necessarily made of the claimant a “roving” or “itinerant” workman. The travel to and from his home and the place of his current work was not the ordinary travel of a workman between his home and his regular place of work. The claimant’s travel, for which he was reimbursed by his employer, was an essential part of the expeditious performance of his work in the furtherance of the employer’s business, as was also his transportation of the supplies which were stored at his home for his use in his work. Under the established facts of this case, his home rather than his employer’s shop was the usual starting and stopping place of his course of employment. The claimant’s status was analogous to that of a “travelling salesman” to whom compensation is payable for injuries suffered while going about in the actual furtherance of his employer’s business[.]

Id. at 34-35, 46 A.2d at 476-77 (citations omitted).

The factual scenario in the case at bar is dissimilar from both Peterson and Hohman. The instant facts do not support Appellee’s assertion that the decedent had no fixed place of work. The referee determined that the decedent “oversaw several jobs at one time, travelling between the jobs.” (Referee’s Findings of Fact; Reproduced Record at 8a). The decedent’s co-worker testified that the decedent travelled around and overlooked three and four jobs at a time. (Reproduced Record at 41a). The findings of fact and the testimony in this case were insufficient to overcome claimant’s burden of proof that an exception to the “coming and going rule” existed. Testimony that the decedent travelled “around” and “overlooked” three and four jobs at a time gives no indication as to the frequency of travel (i.e., whether the decedent travelled to these three or four job sites daily, weekly, or monthly). We are unable to determine that the “no fixed place of work” exception is applicable because the factual findings as well as the testimony supporting those findings do not reveal the decedent’s travel schedule.

Here, Appellee has failed to provide sufficient evidence demonstrating that the decedent travelled from work site to work site on a daily basis. Moreover, the record is devoid of any such evidence. Therefore, the Commonwealth Court erred in finding that the “no fixed place of work” exception to the “coming and going rule” was applicable.

Accordingly, we reverse the Order of the Commonwealth Court and reinstate the Order of the Workmen’s Compensation Appeal Board.

PAPADAKOS, J., files a dissenting opinion. MONTEMURO, J., is sitting by designation.

1 . Appellant raised a second issue contending that the Commonwealth Court exceeded its scope of review when it found as a fact that the decedent had no fixed place of work. As noted, we limited allocatur to the issue of whether the circumstances of the decedent's employment supported a conclusion that the decedent had "no fixed place of work." Thus, we will not address the second issue.

2 . In Hohman, we did not expressly mention the “no fixed place of work” exception, rather, our rationale concerned whether the injury occurred while the employee was in the furtherance of the employer's business.