Loomer v. Commonwealth

388 A.2d 788, 36 Pa. Commw. 591, 1978 Pa. Commw. LEXIS 1205
CourtCommonwealth Court of Pennsylvania
DecidedJuly 20, 1978
DocketAppeal, No. 995 C.D. 1977
StatusPublished
Cited by11 cases

This text of 388 A.2d 788 (Loomer v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Loomer v. Commonwealth, 388 A.2d 788, 36 Pa. Commw. 591, 1978 Pa. Commw. LEXIS 1205 (Pa. Ct. App. 1978).

Opinion

Opinion by

Judge Rogers,

Pauline A. Loomer, the widow of Walter E. Loomer, Jr., has appealed from an order of the Workmen’s Compensation Appeal Board reversing the award by a referee of benefits on her widow’s fatal claim petition. We affirm.

Mr. Loomer, a Pennsylvania resident, was employed as an outside salesman for Hample Equipment Company (Hample), a New York corporation. He had been hired in 1973 at Hample’s place of business in New York. Hample’s business was that of distributing and installing food service equipment and supplies. Mr. Loomer was Hample’s sales representative for Chemung County and a portion of Tioga County in New York, and additionally for the Pennsylvania counties of Bradford, Tioga, Potter, Sullivan, Lycoming and Wyoming. On September 20, 1975, Mr. Loomer and two other Hample representatives departed Sayre, Pennsylvania in a private airplane piloted by decedent. The three were going to Louisville Kentucky to attend a manufacturer’s show of restaurant equipment. The airplane crashed in West Virginia and all occupants were killed. Mrs. Loomer filed a claim petition for compensation under The Pennsylvania Workmen’s Compensation Act (Act),1 77 P.S. §1 et seq.

[593]*593After a hearing, the referee made the following pertinent findings of fact and conclusions of law:

FINDINGS OF FACT
3. We find as a fact that . . . decedent [was] employed as an outside traveling salesman for [Hample]. . . .
13. [Hample’s] place of business was located at Horseheads, New York. . . . The plant was composed of a show room of 10,000 square feet, general offices covering 3,500 square feet and a warehouse covering 25,000 to 30,000 square feet. The defendant was in the business of distributing and installing food equipment services and supplies. It entailed the distribution and selling of food service equipment and supplies to hotels, motels, restaurants, diners, hospitals, various institutions, schools, colleges, nursing homes and retail trade. The defendant had working for them approximately thirty-three to thirty-five employees.
[Hample] was a registered New York Corporation, which had no place of business in Pennsylvania but did business in Pennsylvania, and although the claimant alleges they were registered to do business in Pennsylvania this was not denied or rebutted by [Hample].
Other sales territories of [Hample] were covered by other salesmen and included the areas of Corning, New York; Binghamton, New York; Ithaca, New York; Cortland, New York and vicinity. Don Miller and Mr. Hample, as well as the decedent, sold in territory in Pennsylvania.
14. We find as a fact that the business transactions and invoice files of [Hample] were [594]*594at Horseheads, New York. Their accounts were maintained there alphabetically with 4,400 active accounts and with total accounts of 12,000 to 15,000 folders.
[Hample] withheld taxes and Social Security was deducted at the offices in Horseheads, New York.
The decedent was required to attend a meeting with the other salesmen at [Hample’s] plant at Horseheads, New York, the [Hample’s] principal place of business, every Friday morning at 8 A.M. The decedent would take in his orders and sales slips at that time and they would discuss policy and receive assignments and instructions. Also, new catalogues and price lists would be passed out and sales problems would be discussed.
The decedent had a desk at [Hample’s] plant at Horseheads, New York which he could use when he attended the meetings or on other occasions, when the necessity arose or called for it.
15. The decedent used the catalogues for special ordering of specific equipment for the right size and specifications. Salesmen could not carry all the catalogues in their cars nor keep them at home and if they did not have a particular one with them, they would have to go to the [Hample’s] plant to get the information needed. They [Hample] would provide the salesmen with as many catalogues as they felt they should have or wanted. The [Hample’s] catalogues had 50,000 different items listed and this made it impossible for salesmen to maintain at their homes or carry the number of catalogues in their car that they may have occasion to use.
[595]*595[Hample] encouraged the salesmen to live in their sales territory. The decedent worked out of his home to cover the routes and he usually called in to [Hample’s] place of business and would stop in if they wanted him or when he was in the vicinity and had a reason for stopping.
16. [Hample] would call the decedent at his home or while he was on the road, if they could locate him, requesting that he return the phone call to them for instructions, directions or a tip, or getting a jump on the competition, so that he could get to a prospective customer first.
The decedent worked directly out of his home and maintained in his home and car, materials relevant to his job, including order forms, invoices, catalogues, books of accounts, and paraphernalia for designing, order books and reference material. This material was reclaimed by [Hample] after the death of the decedent.
19. We find as a fact that... [a]t the time of his death, [decedent’s] sales territory in Pennsylvania [was a much larger area than his New York territory and] decedent was required to work only two days out of every month in New York and the rest of the month was spent working in Pennsylvania. . . .
We find as a fact that when Lawrence Patrick Miller was assigned as a salesman for [Hample] in the decedent’s territory following the decedent’s death, he testified that the total dollar volume of company business from [decedent’s] sales territory . . . was seventy-five percent (75%) from Pennsylvania. ...
[596]*596CONCLUSIONS OF LAW
4. Since the decedent performed not only a substantial portion of his employment with [Hample] in Pennsylvania but did, in fact, perform a major portion of said employment within the confines of the State of Pennsylvania, the claimant is entitled to compensation under the Pennsylvania Workmen’s Compensation Act.
5. Since the decedent was in the course of his employment while furthering the interests of [Hample] at the time of his fatal work-related injury, the claimant is entitled to the compensation provided by the Act.

On appeal, the Board reversed, concluding that:

[Pursuant to Section 305.2 of the Act,2 77 P.S. §411.2, benefits may not be granted for] the extraterritorial death of decedent because decedent’s employment was principally localised in New York State where [Hample] had a place of business and decedent regularly worked at and from said place of business. (Footnote added.) (Emphasis added.)

Section 305.2 of the Act, 77 P.S. §411.2, provides, in pertinent part, that:

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Bluebook (online)
388 A.2d 788, 36 Pa. Commw. 591, 1978 Pa. Commw. LEXIS 1205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loomer-v-commonwealth-pacommwct-1978.