Carretti v. Schwanger , 404 Pa. Super. 51 ( 1991 )

BROSKY, Judge.

This is an appeal from a judgment denying appellant’s post trial motions after her trial on an action against appellees ended in a non-suit. Appellant raises three numbered issues asserting that the granting of appellee’s non-suit constituted the overruling of another judge on the same issue, that the granting of a non-suit denied appellant a jury determination and that the evidence was sufficient to allow the case to go to the jury. We vacate and remand for a new trial.

Appellant was employed by appellee Moyer’s Truck Service in a clerical capacity. Her job duties consisted of answering the phone, setting up appointments, bookkeeping and payroll. Her hours were from 8:00 A.M. to 5:00 P.M. with a one hour lunch and she was obligated to punch a time clock at the beginning and end of each day and at lunch time. Although her duties did not include picking up lunches for the other employees, she often would do so when she went out to lunch and, occasionally, the other employees would do the same when they went out to lunch. Appellant was injured in a motor vehicle collision which occurred while she was riding with a company employee in a company vehicle to a McDonald’s restaurant.

As lunch approached on the day of the accident she told the boss and other employees that she was going to McDonald’s and asked the other employees if they wanted her to bring back food for them. Appellant testified that the other employees gave her money to cover the food items they wanted. However, appellee Moyer indicated in deposition that he gave appellant money and asked her to pick up sandwiches for the guys. Moyer also told her she could have a ride with another employee, Scott Schwanger, as he had to pick up some parts anyway. Appellant punched out as she left for McDonald’s with Schwanger. On the way to McDonald’s the vehicle appellant was riding in and being driven by Schwanger was involved in an accident.

Appellant indicated at trial, in a suit seeking damages for injuries sustained, that she rarely was asked to run errands for work and that virtually all of her responsibilities required her presence in the office. Appellee Moyer did not testify at trial. However, portions of his deposition were read into evidence by appellant. At the close of her case, counsel for appellee moved for a non-suit arguing that the injury was sustained in the course of her employment and that therefore, the Workmen’s Compensation Act provided immunity to the employer and fellow employee. This motion was granted and appellant’s action was dismissed. Post trial motions were filed but denied. This appeal followed.

Although the only factual contention where the testimony appears to be at odds is whether appellant’s fellow employees gave appellant money for their lunches or whether appellee Moyer gave her the money, there are nuánces in characterization that are very relevant to the determination of the issue in question. We would note, however, that with regard to the granting of a non-suit, it would have been erroneous for the trial court to grant the non-suit unless the benefit of the doubt were given to appellee on all key factual issues, including whether the employees gave her the money. The trial court was not sitting as . fact finder and it would constitute an usurpation of the jury’s function to decide these facts against appellee on a mid-trial motion. In any event, based upon the evidence available to the trial court when the non-suit was granted, we must conclude that it was erroneous to grant the motion.

The trial court summarizes the evidence and indicates that appellant went for lunch at the “request” of Moyer. Although, the usage of the word “request” is not qualified or explained by the trial court, nor are we capable of ascertaining the connotation of that word held by the trial court, it is clear that Moyer did not request appellant to go for lunch in the sense that she was obligated by her position to do so. Moyer’s deposition testimony indicates that appellant told Moyer she was going for lunch and Moyer responded that Scott was going for parts, he then gave her money and said “why don’t you pick up sandwiches for the rest of the employees and ride with Scott.” This suggestion appears to have been motivated by the fact that “she was going to take her own car.” Moyer was then asked “[s]o that was basically a matter of courtesy then, that wasn’t a job function of hers? She wasn’t assigned to go get lunch?” To which he responded, “No. No, she wasn’t.” At a different point in the deposition Moyer indicated that he didn’t regularly buy lunch for his employees, but that once in a while he did it to keep up morale. The whole of the testimony reveals that appellant indicated she was going to lunch at McDonald’s and voluntarily offered to pick up food for the other employees. Appellee Moyer then offered her a ride with a fellow employee during which she was injured. We cannot conclude that this evidence dictates a finding that she was injured in the course of her employment so as to be covered under the Workmen’s Compensation Act.

The general rule provides that employees are on their own time at lunch and an off-premises injury is not sustained in the course of one’s employment. However, there are exceptions to this rule and the determination of whether or not appellant was in the course of her employment when she was injured revolves around whether she was actually engaged in the furtherance of her employer’s affairs at that time. Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982). Despite the fact that such a phrase could be given a very broad reading, a review of certain cases makes clear that this requirement means a direct or immediate furtherance of the business affairs of the employer. A mere indirect or incidental benefit to the employer will not satisfy the standard. For instance, in Tatrai an employee at the hospital became ill and was directed to go to the emergency room for treatment. While being treated she was injured. The hospital argued, as does the employer here, that the employee had been injured in the course of her employment. One argument advanced in support of this position was that it was necessary for the hospital to have healthy employees so that they could properly perform their functions and treat patients. Thus, her treatment was an action in furtherance of the employer’s affairs. Although this argument has possible theoretic merit, our Supreme Court was unconvinced by this argument calling such benefit an indirect one.

Similarly, in Workmen’s Compensation Appeal Board v. Hickory Farms of Ohio, 28 Pa.Cmwlth. 30, 367 A.2d 730 (1976), the Commonwealth Court considered a case where an employee was injured while taking work home at the time she was injured. In denying compensation for the accident, the court stated that the act in which the employee was engaged when injured must be done by order of the employer, and not simply for the convenience of the employee. The court noted that the employer never requested that the claimant take the work home with her, rather, she took the work home because she wished to spend the majority of the next day at home.

Drawing upon these decisions we believe it was error to grant the non-suit. Although appellant agreed to bring sandwiches back from lunch, engaging in this task can hardly be thought of as “in furtherance of the employer’s affairs” as outlined in the above decisions. It was not the duty or regular custom of the employer to provide lunch for the employees; nor were special circumstances established that necessitated that lunch be brought in that day to further the affairs of the employer. Appellant was clearly not ordered/requested to go for sandwiches, she was on her own time when she went and indicated she was going to the restaurant in any event. Furthermore, the act of getting sandwiches would provide, at best, only an indirect or incidental benefit to the employer, and the provision of a ride by appellee Moyer was done primarily for appellant’s convenience. These facts do not turn an essentially personal trip into a “business” one. Compare this case with the situation found in Speight v. Burens, 371 Pa.Super. 478, 538 A.2d 542 (1988). There an employee went to lunch with his employer to discuss certain work problems and other work projects. On the way back from lunch the employee was injured in a motor vehicle collision. We found there that the lunch was a business lunch and the employee was engaged in activity in furtherance of his employer’s affairs. The purpose of discussing work problems and projects was construed by us as providing a direct benefit to the employer. The same cannot be said here.

For the above reasons, we cannot conclude that the evidence established that appellant was engaged in activity in furtherance of her employer’s affairs when she sustained the injuries in question. As such, the Workmen’s Compensation Act does not provide an immunity from suit and the non-suit was erroneously granted. Appellant’s post trial motion should have been granted.

Judgment vacated. Case remanded for a new trial.

CIRILLO, President Judge, files a dissenting opinion.