Eberle v. Union Dental Co.

134 A.2d 559, 390 Pa. 112, 1957 Pa. LEXIS 267

Opinions

Opinion by

Mr. Justice Bell,

Eberle applied for Workmen’s Compensation, averring that he “was leaving the premises of his employer at about 5:85 p.m. on June 17, 1952” and “slipped on a banana peel” and fractured his pelvis. He subsequently died, as did his widow, and the present claim is being made by his son and heir for Workmen’s Compensation for the period from the date of his injury, namely, June 17, 1952, until his death on September 12, 1955.

The pertinent facts are briefly as follows:

Eberle, a man then seventy years of age, was employed by Union Dental Instrument Manufacturing Company as a bench hand. The Dental Company was one of a, number of tenants in a building at 32nd and Arch Streets, Philadelphia. Claimant’s place of employment was on the third floor of the building. On the day of the accident he had completed his day’s work, left the third floor, walked down to the street, walked out of the building through an exit door on the 32nd Street side of the building and walked south on the public sidewalk on 32nd Street to go to his home. Eberle slipped and fell on a driveway which crossed the public sidewalk and led to a loading door of the building which was used by the Union Dental Company. The “driveway” in question is a brick paved section of the public sidewalk on the west side of 32nd Street. The loading door abutting this portion of the sidewalk was marked with a sign: “Union Dental Company Dasher Manufacturing Company Shipping and Deceiving.”

The lease by the owners of the building to Union Dental Company provides: “All covenants and agreements herein contained to the contrary notwithstanding, it is understood and agreed that an area approximately twelve feet by thirty feet in the rear portion of the demised premises at the loading door is reserved by lessor for use as a common

Footnotes

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* shipping area for the occupants of other portions of the building of which the demised premises is a part. Lessee agrees that lessor may at any time during the term of this lease or any renewal thereof, erect an enclosure or partition to divide said shipping area from the first floor of the said south building. . . .”

Notwithstanding this lease, it was conceded that ever since 1949 Union Dental Company has had the exclusive use of the loading platform for access to the area on the first floor which it occupied under its lease.

This case is governed by Article III, Sec. 301 of the Act of June 2, 1915,** as amended: “. . . The term ‘injury by an accident in the course of his employment’, . . . shall include all other injuries sustained While the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employe’s presence thereon being required by the nature of his employment.”

There is no contention in this case that the injury was caused by an accident in the course of his employment or that Eberle was engaged in furthering his employer’s business at the time of the accident ; on the contrary, he had finished his work and was. headed home.

The Referee and the Workmen’s Compensation Board and the Court of Common Pleas found for the plaintiff; The Superior Court in Eberle v. Union Dental Company, 182 Pa. Superior Ct. 519, 128 A. 2d 136, reversed. Judge Hiet found as a matter of law that claimant’s injury occurred on the premises of defendant and in a very able opinion said (page 522-523) :

“The difficulty confronting claimant in this appeal however is that his presence on the driveway was not ‘required by the nature of his employment’. Claimant’s use of the stairway in the building in going to his place of work and in leaving the building at the end of the day were required by his assignment to a bench on the third floor for the performance of his duties. . . . when claimant stepped to the cement sidewalk at the foot of the stairs, as he left the building, his employment for the day terminated. On reaching the sidewalk claimant turned south to his right, but not because of anything further required of him ‘by the nature of his employment’. He headed south ‘to get the el’. When he stepped on to the brick driveway the reciprocal obligations of claimant and the employer, each to the other, had been satisfied for the day. When injured, claimant was no more than a member of the public using the sidewalk as a pedestrian — the purpose for which this part of the street had been dedicated for public use. He might have turned to his left on leaving the building instead of to his right. His employer was not interested in the route selected by him over public streets or sidewalks on his way home after his work for the day was fully ended; there was nothing in the nature of his employment which required him to walk upon the driveway.”

Claimant’s injury did not occur from an accident in the course of his employment, and it is equally obvious that he was not actually engaged in the furtherance of the business or affairs of the employer. .We need not decide whether claimant was injured upon the premises which were under the control of the employer and other co-tenants (cf. Bruder v. Philadelphia, 302 Pa. 378, 153 A. 725) or upon which the employer’s business was being carried on, because we are convinced that the claimant has not brought himself within the additional requirement and condition precedent of this statute, namely, that his presence on this driveway was required by the nature of his employment. As the Court said in Lints v. Delaware Ribbon Manufacturers, 173 Pa. Superior Ct. 540, 544, 98 A. 2d 643:

“It is well established that in the absence of special circumstances an accidental injury in going to work or returning is not compensable.”

Judgment affirmed.

Italics throughout, ours.

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P. L. 736, as amended by Act of June 21, 1939, P. L. 520, 77 P.S. See. 411.