# Nemitz v. Air Services International

> Commonwealth Court of Pennsylvania · December 21, 1972 · 7 Pa. Commw. 373

URL: https://www.frixlaw.com/law-library/cases/6361138

## Case

- **Full name:** Nemitz v. Air Services International
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** December 21, 1972
- **Citations:** 7 Pa. Commw. 373; 298 A.2d 654; 1972 Pa. Commw. LEXIS 346
- **Precedential status:** Published
- **Opinion:** Dissent by Wilkinson
- **Judges:** Blatt, Bowman, Brs, Cuumlish, Kramer, Mencer, Rogers, Wilkinson
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6361138

## Opinion text

Dissenting Opinion by
Judge Wilkinson :
I cannot agree that an individual who lives in New Jersey, who is hired to ferry aircraft overseas, and merely comes into the Commonwealth to pick up the aircraft, is only temporarily out of the Commonwealth performing his duties of employment when he is ferrying the aircraft abroad. On the contrary, both in terms of time spent and duties performed, to me he is only temporarily in the Commonwealth to pick up the aircraft.
The majority opinion relies heavily on the fact that he returns to the Commonwealth to pick up the next plane. Again, to me this would dictate just the op *380 posite result. His duties were to ferry aircraft abroad. He was paid a flat sum for each trip. He returned to his home in New Jersey. His next trip into Pennsylvania was incident to picking up his next new duty assignment to ferry another aircraft abroad.
While not controlling, the Circuit Court of Appeals for the Sixth Circuit had occasion to intepret this very provision of our Workmen’s Compensation Act as it applies to an airplane pilot who initiated his flights in New York, flew over Pennsylvania, landed in Pittsburgh, and then continued on to Birmingham, Alabama, where he was killed. The Circuit Court held that he was excluded from the benefits of the Act since the accident occurred outside the Commonwealth and he was not merely “temporarily beyond the territorial limits of the Commonwealth.” Duskin v. Pennsylvania-Central Airlines Corporation, 167 F. 2d 727, 731 (1948).
It seems to me that this decision interprets the Workmen’s Compensation Act to mean that a person who is expressly employed to perform substantially all his duties outside Pennsylvania and whose only connection with Pennsylvania is merely returning to Pennsylvania at least once every six months to pick up a new foreign assignment involving his immediate departure from the Commonwealth, is covered by the Act for accidents outside the Commonwealth. I do not consider such a situation a borderline decision but rather an unwarranted extension of the plain language of the Act.
I dissent.
President Judge Bowman and Judge Ro&brs join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6361138. Public record. Not legal advice.