            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Niche Knight,                               :
                       Petitioner           :
                                            :
               v.                           : No. 1752 C.D. 2015
                                            : Submitted: May 13, 2016
Workers’ Compensation Appeal                :
Board (Commonwealth of                      :
Pennsylvania, Norristown State              :
Hospital),                                  :
                  Respondent                :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                     FILED: June 9, 2016


               Niche Knight (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) affirming the Workers’
Compensation Judge’s (WCJ) decision denying her claim petition for benefits
under the Pennsylvania Workers’ Compensation Act (Act) 1 because the injuries
she sustained were not incurred in the scope of her employment because the place
she was injured was not owned by employer nor integral to its business and



      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
because her accident did not fall within the special mission exception to the
“coming and going rule.” We affirm.


                                          I.
             On October 1, 2011, while employed by the Department of Public
Welfare (Employer) as a forensic correction officer, Claimant sustained injuries in
the nature of a bilateral amputation of the lower extremities above her knees,
vascular compromise, tissue necrosis, infection, post-traumatic stress syndrome,
depression, and non-ambulatory syndrome. Alleging that those injuries occurred
during the course and scope of her employment, Claimant filed a claim petition
seeking payment of medical bills, attorney’s fees and full disability benefits.
Employer timely filed an Answer denying that the incident occurred in the course
and scope of Claimant’s employment. At the request of both parties, this matter
was bifurcated to determine the threshold issue of whether Claimant was within
her scope of employment for Employer at the time of the incident.


             Before the WCJ, Claimant testified that she worked as a forensic
correction officer for Employer for approximately seven years at the Norristown
State Hospital (Hospital) grounds in Building Number 51 (Building). Claimant
stated that she normally arrived at the Building between 10:45 p.m. and 11:00 p.m.
and that her shift began at 11:15 p.m. and ended at 7:15 a.m. Claimant stated that
she signed in with her supervisor for purposes of beginning her shift and that she
did not leave the Building during her shift.




                                          2
             Claimant testified that she was not required to drive any particular
route to work and that her usual route consisted of traveling on a public road by the
name of Sterigere Street, making a right turn onto the Hospital driveway at Gate 4
until she reached a parking lot next to the Building. Claimant testified that she
passed other entrances to the Hospital grounds when traveling on Sterigere Street
toward Gate 4, and that she took Gate 4 because it provided the closest entrance to
the Building and its adjacent lot. Claimant stated that she was not required to park
in any particular area on Hospital grounds and that she chose to park in the lot next
to the Building for convenience purposes.


             Claimant testified that at approximately 10:50 p.m. on October 1,
2011, while driving to work, she heard sounds indicating that her car had a flat tire.
She testified that she then activated her hazard lights and came to a complete stop
with her car partially parked on the grass-area beside the road approximately two
car-lengths away from Gate 4. Claimant stated that because she observed her car’s
left-front tire was flat, she went to the rear of her car to retrieve a spare tire.
Claimant stated that her attempt to retrieve the tire was unsuccessful and that she
called her supervisor, Chris Puleo (Supervisor), and her coworker, Natalie Moe-
Paul (Coworker), to inform them of the situation and to see if someone was
available to help. Claimant testified that she was standing behind her car making
those calls when another vehicle struck her.


             On cross-examination, Claimant testified that she was standing on
Sterigere Street at the time of impact and was not on Hospital grounds. Claimant
stated that Sterigere Street was a public road that could be used by people other



                                          3
than those going to or from the Hospital, and that she was not required to take any
specific route to the Building.


             Claimant also submitted the deposition testimony of her Coworker,
who testified that at approximately 11:00 p.m., 15 minutes before her 11:15 p.m.
shift was to begin, she was driving on Sterigere Street when she noticed a parked
car with its flashers activated at the side of the road. Moments later, Claimant
called Coworker and explained that she had a flat tire and was the person parked
on the side of the road. Coworker then stated that she proceeded to the Building to
inform Supervisor of Claimant’s situation, and that after a brief discussion with the
Supervisor, she agreed to assist Claimant. Coworker testified the area where
Claimant’s car was located was approximately 120 feet away from Gate 4, the
car’s right wheels were parked right up against the curb, and that Claimant was
standing directly behind her vehicle. Coworker testified that she saw a car coming
at a high rate of speed and tried to yell to Claimant, and that after Claimant was hit,
she ran to Claimant’s aid.


             Coworker also testified that Building employees used the parking lot
next to the Building and that employees were not assigned specific parking spaces.
Coworker stated that there were two unlocked entrances to the Hospital from
Sterigere Street when beginning the 11:15 p.m. shift. She would use Gate 4 to
arrive at the Building, and she only used the other gate to gain access to the
Building when there was a traffic jam.




                                          4
              In opposition to Claimant’s claim petition, Employer presented the
deposition testimony of Robert M. Scotti (Corporal Scotti), a corporal with the
West Norriton Township Police Department. Corporal Scotti testified that he
arrived on the scene of Claimant’s accident at 11:12 p.m., and that when he arrived
on the scene, he saw Claimant’s car in the center of the road with part of the car
over the center yellow lines. Corporal Scotti testified that there was a curb on
Sterigere Street with grass next to the curb, that Claimant’s car and the one that hit
her were completely on Sterigere Street at the time of the accident, and that
Claimant’s car was approximately 282 feet from Gate 4 at the time of the accident.


              Employer also presented evidence to establish the ownership of the
portion of Sterigere Street where Claimant’s accident took place. George Willans
(Willans), owner of Central Montgomery Abstract, testified by deposition that a
1999 Montgomery County property tax map displaying Sterigere Street, as well as
a 1925 Board of View report and its subsequent Court approval, established a fee
simple ownership of 60 feet of land was transferred from Employer to the
Township of West Norriton to straighten Sterigere Street in 1925. Robert J. Kerns
(Kerns), Solicitor for West Norriton Township, also testified by deposition that a
2007 Norriton Township zoning map, the 1925 Board of View report and the
subsequent 1925 court proceedings established that Sterigere Street was a
municipal road that the Township of West Norriton had a fee simple ownership
interest in, and that Employer had not owned land up to the middle of the road
since 1925.




                                          5
              The WCJ denied the claim petition finding that the accident did not
occur while in furtherance of Employer’s business or on premises occupied or
controlled by Employer because Sterigere Street was owned by the Township of
West Norriton. With respect to the location of the accident, the WCJ found
Coworker’s and Corporal Scotti’s testimony more credible than Claimant’s,
determining that the accident happened between 120 and 282 feet from Gate 4.
The WCJ concluded that the incident did not fall within an exception to the
“coming and going rule”2 because Claimant had a fixed place of work and there
was no evidence of any other exception applying in this matter.


              Claimant appealed to the Board contending that the WCJ erred when
concluding the site of the injury must be occupied or under the control of the
employer, arguing that under PPG Industries, Inc. v. Workmen’s Compensation
Appeal Board (Uleski), 542 A.2d 621 (Pa. Cmwlth. 1988), liability could be
imposed on an employer if the property where the accident occurred was an
integral part the employer’s business. Claimant also argued that the WCJ erred in
not determining Supervisor expanded the course and scope of Claimant’s
employment with Employer after directing Coworker to help Claimant. The Board
affirmed the WCJ’s decision, determining the site of Claimant’s injury was not an
integral part of Employer’s business, and that Claimant was not in the course and

       2
          In a claim petition, the burden is on the claimant to prove that he or she was injured
during the course and scope of employment. Olszewski v. Workmen’s Compensation Appeal
Board (Royal Chevrolet and American Fire and Casualty), 648 A.2d 1255, 1257 (Pa. Cmwlth.
1994). “Whether an employee is acting within the course and scope of his or her employment at
the time of injury is a question of law to be determined on the basis of the [WCJ’s] findings of
fact and is reviewable by this Court.” Id.




                                               6
scope of her employment when injured. Claimant then filed this petition for
review.3


                                               II.
              In her petition,4 Claimant contends that the Board erred in finding that
her injuries were not compensable because she was not within the scope of her
employment when injured. The Act provides that “[e]very employer shall be liable
for compensation for personal injury to, or for the death of each employe, by an
injury in the course of his employment . . . .” 77 P.S. §431. Section 301(a) of the
Act defines the terms “injury” and “personal injury” “to mean an injury to an
employe, regardless of his previous physical condition, arising in the course of his
employment and related thereto . . . .” 77 P.S. §411(1). The Act further directs
that the term “injury arising in the course of his employment” shall not include:

              injuries sustained while the employe is operating a motor
              vehicle provided by the employer if the employe is not
              otherwise in the course of employment at the time of
              injury; but shall include all other injuries sustained while

       3
        On appeal to the Board, Claimant also argued that the WCJ erred in crediting Willans’s
and Kerns’s opinions regarding whether Employer owned a fee simple on the street where
Claimant was injured. However, on appeal to this Court, Claimant no longer asserts that
Employer owns Sterigere Street to the middle of the street.

       4
          Our scope of review in a workers’ compensation appeal is limited to determining
whether necessary findings of fact are supported by substantial evidence, whether an error of law
was committed, or whether constitutional rights were violated. City of Scranton v. Workers’
Compensation Appeal Board (Roche), 909 A.2d 485, 486 n.1 (Pa. Cmwlth. 2006). Whether a
claimant is injured in the course of employment is a question of law to be determined on the
basis of the WCJ’s findings of fact. Markle v. Workers’ Compensation Appeal Board (Bucknell
University), 785 A.2d 151, 153 (Pa. Cmwlth. 2001).




                                               7
            the employe is actually engaged in the furtherance of the
            business or affairs of the employer, whether upon the
            employer’s premises or elsewhere . . . .


77 P.S. §411(1).


            The “coming and going rule” holds that an injury or death sustained
by an employee traveling to or from a place of employment does not occur in the
course of employment, making it non-compensable under the Act.            Biddle v.
Workmen’s Compensation Appeal Board (Thomas Mekis & Sons), 652 A.2d 807,
809 (Pa. 1995); Village Auto Body v. Workers’ Compensation Appeal Board
(Eggert), 827 A.2d 570, 573 (Pa. Cmwlth. 2003). However, such an injury or
death will be considered to have been sustained in the course of employment and,
thus, is compensable under the Act if one of the following exceptions applies:

            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.


Wachs v. Workers’ Compensation Appeal Board (American Office Systems), 884
A.2d 861, 862 (Pa. 2005) (quoting Thomas Mekis & Sons, 652 A.2d at 809).


            Claimant first contends that her injuries are compensable because the
portion of Sterigere Street outside of Gate 4 was such an integral part of


                                         8
Employer’s business that it became part of Employer’s premises. As this Court
has explained:

                    An injury takes place in the course of employment
            if it occurs in either one of two distinct situations. First,
            an injury is compensable if it occurs while the claimant is
            furthering the business or affairs of his employer,
            whether the injury occurs on or off the employer’s
            premises. U.S. Airways v. Workers’ Compensation
            Appeal Board (Dixon), 764 A.2d 635, 640 (Pa. Cmwlth.
            2000). Second, even if the claimant is not furthering the
            employer’s business at the time of his injury, he is
            entitled to benefits if he is injured “on the employer’s
            ‘premises’ at a reasonable time before or after the work
            period.” Newhouse v. Workmen’s Compensation Appeal
            Board (Harris Cleaning Service, Inc.), 530 A.2d 545,
            547 (Pa. Cmwlth. 1987).

                                        ***

                   Pennsylvania courts have held that an employer’s
            “premises” is not necessarily limited to buildings or
            property controlled, occupied, or owned by the employer.
            Waronsky v. Workers’ Compensation Appeal Board
            (Mellon Bank), 958 A.2d 1118, 1125 (Pa. Cmwlth.
            2008). Rather, “premises” can encompass property that
            “could be considered an integral part of the employer’s
            business.” Ortt v. Workers’ Compensation Appeal Board
            (PPL Services Corp.), 874 A.2d 1264, 1267 (Pa. Cmwlth.
            2005) (emphasis added). Property becomes integral to an
            employer’s business when the employer requires
            employees to use that property. Id. at 1267-68. Thus,
            “the critical factor is not the employer’s title to or control
            over the area, but rather the fact that . . . [the employer]
            had caused the area to be used by . . . employees in
            performance of their assigned tasks.” Waronsky, 958
            A.2d at 1125 (citations and quotation marks omitted).




                                          9
Mansfield Brothers Painting v. Workers’ Compensation Appeal Board (German),
72 A.3d 842, 845-46 (Pa. Cmwlth. 2013) (omissions in original).


            When property is not owned, occupied or controlled by the employer,
it may still be deemed the employer’s premises if it is “integral” to the employer’s
business (i.e., it is used to carry out the employer’s business). For example, in
Uleski, the case Claimant relies upon, the claimant finished his shift and picked up
his car in the employer’s parking lot. All employees leaving the parking lot had to
cross a set of railroad tracks. The claimant was attempting to cross the tracks when
his car was struck by an oncoming train. On appeal, we concluded that because the
sole means of entering and leaving the employer’s parking lot was over the railroad
tracks, the tracks were an integral part of the employer’s premises even though the
railroad tracks were not owned or controlled by that employer.


            In this case, though, contrary to Claimant’s assertion, the area
between Gate 4 and Sterigere Street was not an integral part of Employer’s
business because Claimant’s normal practice of exiting Gate 4 “was purely
optional, not required or ‘integral’ to Claimant’s employment.” See PPL Services
Corp., 874 A.2d at 1267. Claimant admits that she was not required to drive a
particular route to get to work nor was she required to park in the lot next to the
Building. Further, Claimant admits that Hospital grounds and the Building could
be accessed through a different gate that she passed while approaching Gate 4. In
any event, even if there was only one entrance to an employer’s facility does not
make the public road outside that entrance “integral” to an employer’s business.




                                        10
            Claimant also contends that the Board erred in denying her claim
petition because she came within an exception to the “coming and going rule”
because when her Supervisor authorized Coworker to go on a “special mission” to
help fix Claimant’s flat tire, that authorization correspondingly expanded
Claimant’s scope of employment. Specifically, Claimant asserts that because the
purpose of Supervisor’s directive was to benefit Claimant, any expansion in the
scope of Coworker’s employment due to her “special mission” should, in turn, be
extended to Claimant. Assuming, arguendo, that Coworker was on a “special
mission” and did not merely receive permission to personally assist a coworker, the
“special mission” exception cannot apply to Claimant in this instance because it
only extends to the employee assigned the special mission and does not extend to
persons not assigned the special mission.


            In any event, an employer’s attempt to aid an employee, without
more, cannot constitute “the furtherance of the [Employer’s] business or affairs.”
77 P.S. §411(1). As we have explained, “‘it is always in the employer’s interest
that employees come to work.       . . .     This interest, far from being a special
circumstance, is a universal one.’”        Simko v. Workers’ Compensation Appeal
Board, 101 A.3d 1239, 1242 (Pa. Cmwlth. 2014), appeal denied, 113 A.3d 282
(Pa. 2015) (quoting Mackey v. Workers’ Compensation Appeal Board (Maxim
Healthcare Services), 989 A.2d 404, 411 (Pa. Cmwlth. 2010) (citation omitted)).




                                           11
               Accordingly, because the Board did not err in affirming the WCJ’s
decision denying her claim petition for workers’ compensation benefits, we
affirm.5



                                               ____________________________________
                                               DAN PELLEGRINI, Senior Judge




       5
         On appeal to this Court, Claimant additionally contends that the WCJ and Board erred
when not applying the “Humanitarian Rule.” Even assuming such a doctrine exists, Claimant
did not raise this issue to the Board, and it is a well-established rule that issues are waived if not
preserved at every stage of a proceeding. Wheeler v. Workers’ Compensation Appeal Board
(Reading Hospital & Medical Center), 829 A.2d 730 (Pa. Cmwlth. 2003).



                                                 12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Niche Knight,                       :
                  Petitioner        :
                                    :
            v.                      : No. 1752 C.D. 2015
                                    :
Workers’ Compensation Appeal        :
Board (Commonwealth of              :
Pennsylvania, Norristown State      :
Hospital),                          :
                  Respondent        :




                                 ORDER


            AND NOW, this 9th day of June, 2016, it is hereby ordered that the
order of the Workers’ Compensation Appeal Board dated August 26, 2015, at No.
A14-0141, is affirmed.



                                    ____________________________________
                                    DAN PELLEGRINI, Senior Judge
