29 A.2d 241 | Pa. Super. Ct. | 1942
Argued October 1, 1942.
The only question is whether Max Koeppel was, at the time of his accidental death in the State of Iowa, *611
within that class of "employes whose duties require them to go temporarily beyond the territorial limits of the Commonwealth, not over ninety days, when such employes are performing services for employers whose place of business is within the Commonwealth." Act of June 2, 1915, P.L. 736, art. 1, § 101, as amended by the Act of June 4, 1937, P.L. 1552 § 1,
The referee found that "his duties required him to be outside the confines of the Commonwealth of Pennsylvania permanently and not temporarily for a period of less than ninety days." The board affirmed this finding, saying: "The contract entered into by the decedent with the defendant and the decedent's activity required him to travel outside of the Commonwealth for periods in excess of 90 days." The compensation authorities denied compensation and on appeal the court of common pleas affirmed. This appeal followed.
There is virtually no dispute about the facts. Koeppel was first employed by defendant as a travelling salesman January 25, 1936. At that time he was a resident of New Rochelle, N.Y. The contract of employment was in writing and specifically provided that he should act as defendant's salesman in Western Pennsylvania, Ohio, Indiana and Kentucky. In the early part of 1938, Koeppel toured New England on behalf of defendant. On April 1, 1938, a new written contract was made by the parties in which it was provided that Koeppel was to be employed "as their Salesman in the States of IOWA, MINNESOTA, NORTH SOUTH DAKOTAS, NEBRASKA and WISCONSIN." This contract was for a period of three months — which is in excess of ninety days — and was automatically renewable *612 for like periods unless terminated by one week's notice. At the time this second contract was entered into, Koeppel lived in Chicago, Illinois; he never has lived in the State of Pennsylvania.
Although there is nothing in the written contract which required Koeppel at any time or for any purpose to enter the State of Pennsylvania, there was testimony that he did report to defendant's place of business in Philadelphia about six times a year and remain for two or three days, during which he would discuss changes in the lines of clothing sold and selling points. Koeppel was killed in an automobile accident in Green County, Iowa, on May 26, 1938 while on a selling trip.
It was not incumbent upon claimant to prove that Koeppel was a "Pennsylvania employe" (see Stewart v. Thomas Earle Sons, Inc.,
Judgment for defendants is affirmed.