Sivertsen v. State, 43 Misc.2d 978, 980, 252 N.Y.S.2d 623, 626-27 (1964), rev'd, 24 App. Div.2d 918, 264 N.Y.S.2d 602 (1965), rev'd per curiam, 19 N.Y.2d 698, 225 N.E.2d 572, 278 N.Y.S.2d 886 (1967). Our Court allowed a common law action in Del Rossi v.Pennsylvania Turnpike Commission, 210 Pa. Super. 485, 233 A.2d 597 (1967). There, plaintiff's decedent, a turnpike employee, was fatally injured in an automobile accident while crossing a medial barrier heading away from the maintenance depot where he had been stationed.
Accord, Walker v. City County of San Francisco, 97 Cal.App.2d 901, 905-908, 219 P.2d 487, 490-91 (1950) (fireman injured in collision with municipal street car); Osborne v. Commonwealth, 353 S.W.2d 373, 375 (Ky.App. 1962) (highway department employee struck by state police car); Bross v. City of Detroit, 262 Mich. 447, 450, 247 N.W. 714, 715 (1933) (fireman injured in collision with city trolley); De Guiseppe v. City of New York, 188 Misc. 897, 898-899, 66 N.Y.S.2d 866, 867 (Sup.Ct. 1946) (sanitation worker struck by city trolley), aff'd, 273 App. Div. 1010, 79 N.Y.S.2d 163 (1948); 2A A. Larson, The Law of Workmen's Compensation § 72.80 (1976). Cf. Del Rossi v. Pennsylvania TurnpikeCommission, 210 Pa. Super. 485, 490 n. 1 233 A.2d 597, 600 n. 1 (1967) (where fatality occurred on state-maintained highway, lower court must determine whether employee was there as an employee rather than a member of the public). New Jersey courts have specifically rejected the enterprise theory espoused by Professor Davis. See Taylor v. Pfaudler Sybron Corp., 150 N.J. Super. 48, 49-52, 374 A.2d 1222, 1223-24 (App.Div.), cert.denied, 75 N.J. 20, 379 A.2d 251 (1977).
The courts of Pennsylvania have distinguished between property owned by the employer and premises of the employer. Del Rossi v. Pennsylvania Turnpike Commission, 210 Pa. Super. 485, 233 A.2d 597 (1967). Property that is owned, leased or controlled by the employer, in order to constitute "premises" must be "so connected with the business in which the employee is engaged as to form a component or integral part of it."
The second relates to injuries occurring on the premises of the employer. Epler v. North American Rockwell Corp., 482 Pa. 391, 393 A.2d 1163 (1978); Morucci v. Susquehanna Collieries Co., 297 Pa. 508, 147 A. 533 (1929); Del Rossi v. Pa. Turnpike Comm'n, 210 Pa. Super. 485, 233 A.2d 597 (1967); Eberle v. Union Dental Co., 182 Pa. Super. 519, 128 A.2d 136 (1956); Kosavage v. State Workmen's Insurance Fund, 109 Pa. Super. 231, 167 A. 473 (1933). With reference to the first category the coverage of the Act is dependent upon a showing that the employee was "actually engaged in the furtherance" of the employer's affairs.
The history and facts of this case need not be repeated in this opinion since they are fully set forth in the two opinions previously mentioned. The basic issue now before us is whether the Board's seventh finding of fact, i.e., "We find as a fact that the accident did not occur on the premises owned or under the control of the defendant," can be sustained without a capricious disregard of the competent evidence. Del Rossi v.Pennsylvania Turnpike Commission, 210 Pa. Super. 485, 233 A.2d 597 (1967). The lower court, speaking through Judge REED, found that it was sustained by the record.
. . . 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. In interpreting this provision the appellate courts of this Commonwealth have consistently held that absent special circumstances not here appearing, injuries received by an employee travelling to or from his place of employment are not compensable. Eberle v. Union Dental Company, 390 Pa. 112, 134 A.2d 559 (1957); Houlehan v. Pullman Company, 280 Pa. 402, 124 A. 640 (1924); Del Rossi v. Pennsylvania Turnpike Commission, 210 Pa. Super. 485, 233 A.2d 597 (1967); Giallonardo v. St. Joseph's College, 177 Pa. Super. 87, 111 A.2d 178 (1955); Davis v. Workmen's Compensation Appeal Board, 41 Pa. Commw. 262, 398 A.2d 1105 (1979); Schofield v. Workmen's Compensation Appeal Board, 39 Pa. Commw. 282, 395 A.2d 328 (1978); Workmen's Compensation Appeal Board v. Hickory Farms, 28 Pa. Commw. 30, 367 A.2d 730 (1976); Workmen's Compensation v. Hentish, 20 Pa. Commw. 514, 341 A.2d 926 (1975). This interpretation is grounded on the recognition that in the usual case an employe travelling to or from work is neither on the premises of his employer, nor engaged in the furtherance of his employer's affairs.
When Mrs. Giebel was injured at Sears, Roebuck's retail store, she was in a place where her presence was not required by the nature of her employment and her injuries are therefore not compensable. See Fetzer v. Michrina, 8 Pa. Commw. 273, 301 A.2d 924 (1973); Del Rossi v. Pennsylvania Turnpike Commission, 210 Pa. Super. 485, 233 A.2d 597 (1967). Since Mrs. Giebel is disqualified because her injuries were not sustained in the course of her employment, it is not necessary to discuss her contention that the referee capriciously disregarded competent evidence in failing to find that she was disabled as a result of injuries sustained when she fell in her employer's store, beyond recording that we have read the record and are satisfied that the referee gave Mrs. Giebel's proofs all of the weight they deserved.
Appellant contends that there is well established law which holds that injuries sustained while going to or from work, not on the employer's premises, are not compensable. See Palko v. Taylor-McCoy Coal Coke Company, 289 Pa. 401, 137 A. 625 (1927); Cymbor v. Binder Coal Company, 285 Pa. 440, 132 A. 363 (1926); Del Rossi v. Pennsylvania Turnpike Commission, 210 Pa. Super. 485, 233 A.2d 597 (1967); Ristine v. Moore, 190 Pa. Super. 610, 155 A.2d 456 (1959); Harrington v. Workmen's Compensation. Appeal Board and City of Philadelphia, 15 Pa. Commw. 119, 325 A.2d 337 (1974). However, as Appellant states, the exception to this rule of denying recovery to an injured employee who received injuries while traveling to or from work attaches when the "special circumstance" of furthering the business of the employer occurs during the period of going to or returning from work.
It embraces property used in connection with the actual place of work where the employer carries on the business in which the employee is engaged. Del Rossi v. Pennsylvania Turnpike Commission, 210 Pa. Super. 485, 233 A.2d 597 (1967). While a public roadway can be considered as the employer's "premises," this is true only where the employer is controlling the roadway and using it in connection with its business as, for example, in Meucci v. Gallatin Coal Co., 279 Pa. 184, 123 A. 766 (1924) where the roadway was used by the employer in connection with loading and unloading and it was kept in repair and maintained by the employer.
Accordingly, the sole relevant difference between the 1972 Amendments and the prior statute as applied to Section 301(c) "course of employment", for purposes of this case is the degree of causation imposed by the phrase "and related thereto." Assuming decedent was not on the employer's premises at the time of the shooting, claimant may still recover, see Del Rossi v. Pennsylvania Turnpike Commission, 210 Pa. Super. 485, 233 A.2d 597 (1967), if it can be established that Decedent was at the time actually engaged in the employer's business. See Palko v. Taylor-McCoy Coal Coke Co., 289 Pa. 401, 137 A. 625 (1927).