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PAULINE A. LOOMER v. COMMONWEALTH PENNSYLVANIA (07/20/78)

decided: July 20, 1978.

PAULINE A. LOOMER, W/O WALTER E. LOOMER, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HAMPLE EQUIPMENT COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Pauline A. Loomer, w/o Walter E. Loomer, Jr. v. Hample Equipment Company, No. A-72286.

COUNSEL

John R. Lenahan, Jr., with him Robert J. Beirne, and Paul G. Riffle, for petitioner.

Joseph E. Gallagher, with him, of counsel, O'Malley, Bour & Gallagher, and James N. Diefenderfer, for respondents.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 36 Pa. Commw. Page 592]

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),*fn1 77 P.S. ยง 1 et seq.

[ 36 Pa. Commw. Page 593]

After 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 ...


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