N THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason LePore, :

Petitioner :

:

v. : No. 1494 C.D. 2015

: Submitted: January 29, 2016

Workers’ Compensation Appeal :

Board (Full Phaze Construction, :

Inc.), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: May 11, 2016

Jason LePore (Claimant) petitions for review of an adjudication of the 

Workers’ Compensation Appeal Board (Board) denying his claim petition under 

the Workers’ Compensation Act (Act).

1

 In doing so, the Board reversed the 

decision of the Workers’ Compensation Judge (WCJ) that Claimant had no fixed 

place of work and was on a special mission at the time of his automobile accident. 

Concluding that Claimant was not injured in the course and scope of his 

employment, we affirm.

Claimant worked for Full Phaze Construction, Inc. (Employer) as a 

carpenter from March 2012 until April 24, 2012, at a final rate of pay of $14.50 an 

hour. Claimant’s job required him to work at various job sites throughout the state. 

Claimant did not report to Employer’s main office each day but, rather, commuted 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2

directly from home to the site of the project to which he was assigned. Claimant 

brought his own hand tools with him to each job site. Claimant was responsible 

for keeping track of his hours and turning in his time slips to Employer’s main 

office. On April 24, 2012, while commuting from his home to a job site, 

Claimant’s car was struck from behind by another vehicle. Claimant suffered 

significant injuries as a result of the collision.

On June 3, 2013, Claimant filed a claim petition alleging that the

injuries he sustained in the car accident were work-related and seeking full 

disability benefits from April 24, 2012, onward. Employer filed an answer 

denying Claimant’s averment that his injuries were work-related. Employer issued 

a Notice of Workers’ Compensation Denial on July 1, 2013. The WCJ bifurcated 

the matter to first determine whether Claimant was in the course and scope of his 

employment at the time of his accident and, second, to determine whether 

Claimant’s injuries arose from the incident. The WCJ conducted hearings on July 

22 and November 5, 2013.

At the July 22 hearing, Claimant’s testimony was the sole evidence 

presented. Claimant’s testimony focused on where Claimant performed his 

carpentry for Employer. In that regard, Claimant testified as follows:

[Counsel for Claimant]: Now, on [April 24, 2012] you 

were...working at [Employer’s] rental property; right?

[Claimant]: Yes.

[Counsel for Claimant]: How long did you anticipate working 

at that particular location?

[Claimant]: We would jump from job to job. So another job 

came up if we were waiting on permits. We were re-doing ---
3

we were remodeling the rental apartments.[2] At that time we 

were doing a bathroom.

[Counsel for Claimant]: Okay. And the time that you were 

working with [Employer], how many different job sites did you 

work at?

[Claimant]: I’d say about eight to ten --- between eight and ten.

Notes of Testimony (N.T.), 7/22/2013, at 11; Reproduced Record at 29a (R.R. 

___).

Ken Kale, Employer’s president and owner, testified at the November 

5, 2013, hearing. Kale testified that Claimant was not given a company car for his 

travel nor was he paid for his travel between work sites. Kale also clarified how 

employees split their time between multiple projects:

[Counsel for Claimant]: How many projects did you have going 

on simultaneously?

[Kale]: Most of the time just one, unless we’re --- like today we 

actually got two going on. Because we’re --- day that that 

guy’s doing siding. So we’re getting ready for this --- coming. 

Usually once we’re on a job, we’re usually there until we start 

and finish. So sometimes two.

N.T., 11/5/2013, at 19; R.R. 79a. Kale continued:

We never bounce around from job to job. Once we’re on a job, 

we’re there for the day. We never leave the job --- we only 

work eight hours a day. It wouldn’t make any sense for him to 

be working one job for what [sic] hours and then travel all the 

way across the county to another job, what would that prove. 

We wouldn’t have time to do anything[.]

 

2 When testifying in rebuttal, Employer’s president and owner, Ken Kale, disputed Claimant’s 

contention that he was remodeling Employer’s rental property on April 24, 2012. According to 

Kale, Claimant was assigned to an entirely different job site that day. Although the WCJ 

resolved all credibility determinations in Claimant’s favor, the location of Claimant’s work site 

on the day of the incident is not material to our disposition.
4

Id. at 34; R.R. 94a.

On December 26, 2013, the WCJ issued an interlocutory order 

concluding that Claimant was in the course and scope of his employment at the 

time of his accident. The parties agreed that Claimant’s medical evidence could be 

admitted in the form of an independent medical examination report. On May 16, 

2014, the WCJ issued a decision granting Claimant’s claim petition. The WCJ 

found Claimant more credible than Kale based on the demeanor of the witnesses. 

The WCJ further found that Claimant was injured while on his way to do work at a 

rental property owned by Kale. The WCJ concluded that “Claimant did not have a 

fixed place of employment on the day he was injured ... [and] Claimant was on a 

special mission for [Employer] at the time of his injury.” WCJ Decision at 6; R.R. 

17a.

Employer appealed the WCJ’s decision to the Board. On August 4, 

2015, the Board issued an adjudication reversing the WCJ’s order. The Board 

concluded:

We cannot agree that Claimant had no fixed place of work. 

Rather, his testimony shows that, like the claimant in [Foster v. 

Workmen’s Compensation Appeal Board (Ritter Brothers, Inc.), 

639 A.2d 935 (Pa. Cmwlth. 1994)], he reported to a worksite 

for an indefinite period of time and working at more than one 

worksite per day was not an everyday occurrence.

Neither can we agree that the special mission exception applies. 

The court in Action, Inc .[v. Workmen’s Compensation Appeal 

Board (Talerico)], 540 A.2d 1377 (Pa. Cmwlth. 1988), 

concluded that a claimant performing a normal function of his 

employment, such as attendance at a monthly meeting or 

working at a different store when necessary, was not on a 

special mission.

Board Adjudication at 6; R.R. 9a. Claimant petitioned for this Court’s review.
5

On appeal,3 Claimant presents two issues for our review.4 First, 

Claimant argues that the Board erred in concluding that Claimant had a fixed place 

of work. Second, Claimant contends that the Board erred in concluding that 

Claimant was not on a special mission for Employer. We agree with Employer that 

the Board did not err in resolving these issues and finding that Claimant was not 

within the course and scope of his employment at the time of his accident.

Under Section 301(c) of the Workers’ Compensation Act, a claimant 

is eligible for benefits when he sustains injuries “in the furtherance of the business 

or affairs of the employer, whether upon the employer’s premises or elsewhere.” 

77 P.S. §411(1). However, a claimant is generally not eligible for benefits for 

injuries sustained traveling to his place of employment from his home. Leisure 

Line v. Workers’ Compensation Appeal Board (Walker), 986 A.2d 901, 906 (Pa. 

Cmwlth. 2009). This rule, known as the “coming and going” rule, “is grounded on 

the recognition that an employee’s travel to or from work does not further his 

employer’s business.” Id. 

There are four recognized exceptions to the coming and going rule. A

claimant may collect workers’ compensation benefits for injuries sustained 

travelling between his home and his place of employment if:

 

3 On review this Court determines whether an error of law was committed, necessary findings of 

fact are supported by substantial evidence, or constitutional rights were violated. Village Auto 

Body v. Workers’ Compensation Appeal Board (Eggert), 827 A.2d 570, 572 n.4 (Pa. Cmwlth. 

2003).

4 Claimant raises two additional issues challenging the Board’s reliance on the WCJ’s findings of 

fact. Essentially, Claimant argues that the Board improperly made its own findings of fact 

contrary to the WCJ’s. This argument is meritless. The Board explained that it was bound to 

follow the WCJ’s findings of fact and had no need to make new findings. See Board 

Adjudication at 5; R.R. 8a.
6

(1) the employment contract included transportation to and 

from work;

(2) the employee has no fixed place of work;

(3) the employee is on a special mission for the employer; or

(4) special circumstances are such that the employee was 

furthering the business of the employer.

Id. Only the second and third exceptions are at issue in the matter sub judice. The 

burden was on Claimant to demonstrate that he qualified for one of those two 

exceptions. Id.

Claimant first contends that he did not have a fixed place of work

because he worked at multiple project sites and was present at each site for a 

limited period of time. The Board held that Claimant’s situation was similar to that 

of the claimant in Foster, 639 A.2d 935, who was held not to be injured in the 

scope of his employment. This Court recently summarized Foster as follows:

There, the claimant was a carpenter doing construction work at 

a mall. The claimant travelled directly to the location of 

whatever project he was assigned by his employer. The 

claimant was injured in a car accident in the parking lot of the 

mall he was remodeling. This Court held that the claimant was 

not a travelling employee; rather, he was assigned to work at a 

particular project until the project’s completion and was not 

going to report to any other work site or work under the direct 

supervision of anyone other than the employer during that time.

Mansfield Brothers Painting v. Workers’ Compensation Appeal Board (German), 

72 A.3d 842, 848 (Pa. Cmwlth. 2013).

Here, Claimant was assigned to different project locations and never 

worked under the supervision of any individual other than Employer’s owner, Ken 

Kale. Although Claimant’s specific work location changed, that fact alone does 

not make Claimant a “travelling employee.” “The fact that a job has a discrete and 
7

limited duration does not make the employee who holds it a travelling 

employee[.]” Id. For this reason, the Board did not err when it held that Claimant 

had a fixed place of work and, therefore, was ineligible for workers’ compensation 

benefits under the coming and going rule.

Claimant next argues that the Board erred in concluding that he was 

not on a special mission for Employer at the time of his accident. The Board held

that Action, Inc., 540 A.2d 1377, is instructive on this issue. In Action, Inc., the

claimant’s husband had just returned home from a monthly meeting of insurance 

claims adjusters when he slipped on ice in his driveway and impaled himself on a 

pipe. He was fatally injured. Although the decedent was not paid to attend the 

monthly meetings, his employer expected him to attend and paid his monthly dues. 

When the claimant applied for fatal claim benefits, she argued that the decedent 

was within the course and scope of his employment at the time of his death 

because his attendance at the monthly meeting amounted to a “special mission.” 

This Court disagreed. We explained:

[A]ttendance at [the] monthly meetings[ ] was understood to be 

a normal function of his employment. As such, it did not 

constitute a “special mission.” When he left the meeting to 

return home, he had no further obligation to [the employer] and, 

like any other work day, was merely enroute home.

Action, Inc., 540 A.2d at 1379.

Here, Claimant’s attendance at different job sites was a normal part of 

his job. There was nothing special, unique, or out-of-the-ordinary about 

Claimant’s travel on April 24, 2012. Claimant was en route to his assigned work 

site for the day, just like any other day. Therefore, like the claimant in Action, Inc., 
8

Claimant was not on a special mission for Employer and the injuries he sustained 

in an accident that occurred as he commuted to work were not compensable.

Because Claimant does not qualify for any of the exceptions to the 

coming and going rule, we agree with the Board that he was not injured in the 

course and scope of his employment. Accordingly, we affirm the Board’s order.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason LePore, :

Petitioner :

:

v. : No. 1494 C.D. 2015

:

Workers’ Compensation Appeal :

Board (Full Phaze Construction, :

Inc.), :

Respondent :

O R D E R

AND NOW, this 11th day of May, 2016, the order of the Workers’ 

Compensation Appeal Board dated August 4, 2015, in the above-captioned matter 

is hereby AFFIRMED.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge