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06/16/97 MICHAEL S. GOLDBERG v. WORKERS'

June 16, 1997

MICHAEL S. GOLDBERG, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (STAR ENTERPRISES), RESPONDENT



Appealed From No. A95-4088. State Agency Workers' Compensation Appeal Board.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Smith.

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

FILED: June 16, 1997

Michael S. Goldberg (Claimant) has requested this Court to review an order of the Workers' Compensation Appeal Board (Board) that reversed an order of a Workers' Compensation Judge (WCJ) granting Claimant's claim petition. Claimant questions whether the Board erred by concluding that Claimant could not invoke jurisdiction in Pennsylvania as the place where his employment was "principally localized" because Star Enterprises (Employer) did not maintain its "primary" place of business in Pennsylvania; erred by reversing the WCJ based upon Loomer v. Workmen's Compensation Appeal Board, 36 Pa. Commw. 591, 388 A.2d 788 (Pa. Commw. 1978); and erred by concluding that substantial, competent evidence did not exist to support the WCJ's finding that Claimant's employment was principally localized in Pennsylvania.

I

Employer, a subsidiary of Texaco, operates gas and convenience stores in New Jersey, Pennsylvania and other states. Claimant's contract for hire was made by Employer at its main office in Moorestown, New Jersey. Claimant was hired to work in a managerial position as deli coordinator. His duties included setting up and supervising a new program to expand full service and satellite food service locations owned by Employer to include the production and/or sale of freshly made sandwiches. Employer assigned Claimant to ten stores in Pennsylvania, two in New England and two in New Jersey. He was assigned an additional eight satellite stores in Pennsylvania. At the time of his employment, Claimant resided in Conshohockan, Pennsylvania; in January 1991, he relocated to New Jersey but he returned to Pennsylvania in August.

Claimant testified that he spent 75 percent of his time setting up and visiting stores in Pennsylvania. While on the road, Claimant used office space located in Pennsylvania, and he performed most of his paperwork on the road or at home. Claimant set his own schedule; he was not required to punch a time clock or to report his whereabouts to his supervisor on a daily basis; and he resided in Pennsylvania during his employment, except for the short period of time he relocated to New Jersey. He was directed to report to the main office one day per week, but he was not assigned an office there for over two years. Claimant met vendors and supervisory personnel and received his mail, telephone calls and annual reviews at the main office.

On March 30, 1992, Claimant suffered a work-related injury to his low back while lifting a box of frozen food from the floor at Employer's store in Maple Shade, New Jersey. Claimant received New Jersey compensation benefits from June 24, 1992, the date his disability began, through June 26, 1994. On October 22, 1992, Claimant filed a Pennsylvania claim petition. Employer opposed Claimant's petition, contending that Pennsylvania lacked jurisdiction over his claim.

The WCJ adopted Claimant's testimony as credible and persuasive and rejected Employer's testimony to the extent that it conflicted with Claimant's testimony. The WCJ found that Employer's stores in Pennsylvania constituted "places of business within the meaning of the Workers' Compensation Act" and that Claimant regularly worked at or from these places of business. The WCJ concluded that Claimant met his burden to establish that his employment was principally localized in Pennsylvania pursuant to Section 305.2(a)(1) and (d)(4)(i) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, Section 305.2 added by Section 9 of the Act of December 5, 1974, P.L. 782, 77 P.S. § 411.2(a)(1) and § 411.2(d)(4), and granted compensation benefits of $441.67 per week from June 1992 through the present and into the indefinite future. He awarded a credit to Employer for the benefits paid to Claimant under New Jersey law. *fn1

The Board reversed, relying on this Court's decision in Loomer to conclude that Claimant's employment was not principally localized in Pennsylvania. The Board disagreed that the Pennsylvania stores constituted places of business for purposes of the Act, and it held that "although it is true that employer did business within Pennsylvania via these stores, the fact remains that employer's primary place of business was the office in New Jersey, and not the individual stores which are serviced by that office." Board Decision, p. 5 (emphasis added). *fn2

II

Section 305.2(a)(1) of the Act provides in relevant part that a claimant injured while working outside of Pennsylvania may be covered by the Act if his or her employment was principally localized in Pennsylvania. Section 305.2(d)(4) defines "principally localized" as follows:

(4) A person's employment is principally localized in this or another state when (i) his employer has a place of business in this or such other state and he regularly works at or from such place of business, or (ii) having worked at or from such place of business, his duties have required him to go outside of the State not over one year, or (iii) if clauses (1) and (2) foregoing are not applicable, he is domiciled and spends a ...


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