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ANNETTE LOPRESTI v. COMMONWEALTH PENNSYLVANIA (04/17/78)

decided: April 17, 1978.

ANNETTE LOPRESTI, WIDOW OF VINCENT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND GULF CONSTRUCTION CO., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Annette LoPresti, Widow of Vincent v. Gulf Construction Co., No. A-71661.

COUNSEL

Peter A. DeLiberty, for appellant.

David F. Kaliner, with him James N. Diefenderfer, for appellees.

Judges Rogers, Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 35 Pa. Commw. Page 8]

Annette LoPresti, the widow of Vincent LoPresti, has appealed from an order of the Workmen's Compensation Appeal Board reversing a referee's award of compensation and of expenses on account of her husband's death. The Board concluded that the referee erred in deciding that Vincent LoPresti's death in an automobile accident resulted from injuries sustained while he was actually engaged in the business or affairs of the employer.

Vincent LoPresti was employed by Gulf Construction Co. as a construction foreman. He was a salaried employe paid weekly on Fridays. On Thursday, June 21, 1973, and for several days before that day, Vincent LoPresti had been in Wilkes-Barre working for Gulf Construction Co. He arrived at his home located in Broomall, Pennsylvania, on Thursday evening, at a time later than he usually came home from work. Friday morning, June 22, 1973, was a rainy day and all of Gulf's construction work was cancelled because of the weather. However, Michael LoPresti, Vincent's

[ 35 Pa. Commw. Page 9]

    younger brother, who at times worked as a laborer for Gulf, came to Vincent's home at about 9:00 o'clock A.M. and the two went in Michael's car driven by Michael to the offices of Gulf Construction Co. located in Berwyn, Pennsylvania, about ten miles distant from Broomall. Michael LoPresti testified that Vincent LoPresti's purpose in going to the office was to talk with company officers concerning his work in Wilkes-Barre and to pick up his paycheck. Michael LoPresti's purpose was only that of getting his paycheck for work done sometime previously. After arriving at Gulf's offices and waiting for a time for Gulf's president to arrive, Vincent LoPresti entered the president's private office and then came back with each his and Michael's checks. The president then called both brothers into his office where Vincent LoPresti and the president discussed the Wilkes-Barre project and other work which might provide some laboring work for Michael LoPresti. The conversation between the president and Vincent LoPresti then moved to the subject of possible house foundation work which Gulf might obtain from one Joseph McCollum, a builder and an acquaintance of Vincent LoPresti. Gulf's president told Vincent LoPresti to "contact" Joseph McCollum regarding details for this possible engagement when he, Vincent LoPresti, got home and to report back to him. The brothers LoPresti left Gulf's offices at about 11:30 A.M. On the way to Vincent LoPresti's home in Broomall with Michael driving, they were involved in an accident. Vincent LoPresti suffered injuries from which he died the following day.

The evidence also tended to show that Vincent LoPresti worked at home. This work consisted principally of filling out progress reports, calling laborers and directing them to job-sites. Vincent LoPresti kept Gulf Construction Co. office materials in his home --

[ 35 Pa. Commw. Page 10]

    stationery, forms for reporting job information and a directory of his employer's workmen which he used in calling them as needed.

Finally, with respect to the "contact" Vincent LoPresti was directed by Gulf's president to make with Joseph McCollum, the following interrogation of Michael ...


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