VIRGINIA by lifemate


									VIRGINIA:                                                                                            4/23/1999

                                         Published at 78 O.W.C. 48
                                          Settled Pending Appeal

KENNETH LEE TUMMINO (Deceased), Employee
MARGARET TUMMINO, Claimant                                                                  Opinion by TARR
v.               VWC File No. 186-97-73


Gregory J. Harris, Esquire
2nd Floor
105 Loudoun Street SE
Leesburg, VA 22075
for the Employee.

Frederick T. Schubert, II, Esquire
9030 Stony Point Parkway, Suite 160
Richmond, VA 23235
for the Defendants.

      Review before Chairman Diamond, Commissioner Tarr, and Commissioner Dudley at
Richmond, Virginia, on March 17, 1999.

        The employer/carrier requested review of the August 4, 1998, Opinion of the Deputy

Commissioner which determined that the Commission had jurisdiction over the employee's injury

by accident, which occurred in Washington, D.C., pursuant to Code §65.2-508.1 In its Application

for Review, the employer/carrier asserts that the employer does not have a place of business in

Virginia, as that phrase is defined for purposes of the Act, and that the employee's contract of

employment was not made in Virginia.

  The employee filed workers' compensation claims in Washington, D.C., Virginia, and Maryland. The D.C. commission
declined jurisdiction. The employer/carrier has indicated in a January 25, 1999 letter to the Commission that
the employer and carrier have taken the position that the claim of Kenneth L. Tummino is compensable under the
Maryland's Workers' Compensation Statutes and is prepared to accept this claim in Maryland and pay benefits
pursuant to Maryland's Workers' Compensation Statutes.
                                                            VWC File No. 186-97-73

       On August 26, 1997, the employee's wife filed a claim for death benefits alleging that her

husband died as a result of an injury by accident arising out of and in the course of his employment

on September 10, 1996. The parties stipulated that the employee died as a result of an injury by

accident in Washington, D.C. They also stipulated to an average weekly wage of $673. The issues

on review are whether the employer had a place of business in the Commonwealth and whether the

contract of employment was made in Virginia.

       The employee, Kenneth L. Tummino, was hired by the employer, Fleet Transit, to supervise

deliveries of gasoline from an Amoco facility in Virginia to various gasoline stations in the

Washington, D.C. metropolitan area. Amoco did not charge Fleet for the use of its space. The

employee had a desk and filing cabinet provided by Amoco. Fleet installed his telephone and fax

line. Fleet had three or four tanker trucks for which the employee was required to staff with an

appropriate number of drivers.

       The employee's wife testified at the hearing that the employee was contacted in January or

February 1996 by Kevin McNeil, president of Fleet Transit, regarding employment with Fleet. The

employee went to Baltimore to discuss the position with McNeil in March or April 1996.

Thereafter, they communicated by telephone and fax. She stated that sometime over the weekend

beginning May 24, 1996, the employee showed her a fax from McNeil. The fax was a letter to the

employee from McNeil dated May 22, 1996. This letter set forth a "salary structure" for the

employee outlining a bonus incentive plan. It also included an outline of the employee's job

responsibilities entitled "Responsibilities for Fairfax Position."

       The employee's wife testified that only after the employee received the May 22, 1996, fax

from McNeil did he tell her that he was going to work for Fleet. She stated, "this was not the first

                                                          VWC File No. 186-97-73

one, but this was the one he accepted." She stated that he called McNeil on Monday or Tuesday of

the following week to accept the position. He also said he would fax the letter back. She was not

sure if the employee signed the fax in Virginia.

       Mrs. Tummino testified that McNeil and the employee continued to communicate by

telephone and fax. She said her husband did not travel to Baltimore again until June 3, 1996. She

stated that "when he went up there in June, he indicated to me he'd be filling out the tax papers and

such because he'd already accepted employment."

       When the employee's wife was recalled to testify she stated that before receiving the May

22, 1996, fax, the employee had told her that they had not “locked” the bonus part of the contract

yet. She stated that the employee said, "whatever bonus program that was set up would also be an

added incentive to him taking the job."

       Kevin McNeil, the employer‟s president,        testified that Fleet‟s offices are located in

Baltimore. It does not rent or lease any other space. Fleet‟s records are kept in Baltimore, and all

payroll and bookkeeping functions are performed in Baltimore. Hiring and firing are done in


        McNeil testified that in May 1996, he asked the employee to come to Baltimore because he

wanted to hire him to help with the Virginia operation. He stated that he offered the employee the

position and the employee accepted the position in McNeil's office in Baltimore. According to

McNeil, they agreed on a salary of $35,000 or $36,000 a year and shook hands on the deal. They

did not make a written agreement.

       McNeil introduced the employee to Laura McAlexander, an administrative employee, as the

person who would be running the Virginia operation. McNeil stated that they had not agreed on a

bonus plan. According to McNeil, the employee accepted that offer despite the fact that a bonus

                                                          VWC File No. 186-97-73

plan had not yet been finalized. McNeil testified that he came up with the idea of a bonus plan, but

that the employee had accepted the employment offer prior to McNeil's offer of this additional

employment incentive.

       McNeil testified in an August 1997 discovery deposition taken for the District of Columbia

claim filed by the employee's wife:

       I think he came to Baltimore and we met and we talked about it. I don't really recall
       when we actually agreed to work with us, exactly whether we'll get back to each other
       or we shook hands in the office and said it's a deal or we agreed over the telephone.

       Regarding the May 22, 1996, f ax, the following colloquy took place at the hearing when

the employer/carrier‟s counsel questioned McNeil:

       Q.      Okay. Why did you send that fax?

       A.      Well, at the time we met our agreement, we only really talked about salary, and we
               said I'd set up an incentive program based on performance of some sort and work
               out the details and send it over.

       Q.      Okay. But was his job acceptance contingent on any incentives?

       A.      My recollection is yes, sir.

       Q.      I'm sorry. Was his job acceptance contingent upon what type of incentives that you
               listed in this letter?

       A.      I don't believe so, no.

       Q.      All right. It was a done deal there in Baltimore?

       A.      Yes, sir.

       McNeil agreed that the employee reported to work every day at the Fairfax operation, three

or four trucks parked there on a regular basis, the operation ran out of the Amoco yard where the

drivers would report to work every morning, and the employee supervised the drivers. McNeil

agreed that the employer had installed and paid for a telephone line and fax machine for the

employee. Amoco supplied the desk and file cabinets.

                                                            VWC File No. 186-97-73

       Laura McAlexander testified that she is a vice president of the employer and works in an

administrative capacity. In 1996, her office was located immediately outside of McNeil's office.

She recalled a meeting between McNeil and the employee in May 1996 and she "was under the

impression that [McNeil] was hiring [the employee]." She heard them talking about the position

and that McNeil would come up with a bonus program. The employee was introduced to her as the

new Fairfax operations person.

       The employee's brother, Samuel Tummino, testified in a telephone deposition that the

employee had told him that Fleet contacted him in November or December 1997 about setting up a

trucking business in Virginia. Samuel Tummino said the employee was contacted two or three

times by telephone from Maryland to his place of business in Fairfax, Virginia and was not

interested in the offer until the issue of the bonus was introduced. In March and April 1996, the

issue of a bonus was discussed and communications between the employee and McNeil increased.

Samuel Tummino testified that after he received the May 22, 1996 letter outlining the bonus

package, the employee told his brother that he was going to accept the offer and needed to travel to

Baltimore to "finalize things." According to Samuel Tummino, the employee considered himself

employed by Fleet prior to making this trip to Baltimore.

       Section 65.2-508(A) of the Act provides:

       When an accident happens while the employee is employed elsewhere than in this
       Commonwealth which would entitle him or his dependents to compensation if it had
       happened in this Commonwealth, the employee or his dependents shall be entitled to
       compensation, if:

       1.      The contract of employment was made in this Commonwealth, and

       2.      The employer's place of business is in this Commonwealth; provided the contract of
               employment was not expressly for service exclusively outside of the

                                                         VWC File No. 186-97-73

        In order for the Commission to have jurisdiction over this work-related injury by accident,

the employee must prove the necessary elements of Code §65.2-508. Shawner v. B.E.& K.

Contractors, 60 O.I.C. 392 (1981).

        In Worsham v. Transpersonnel, 15 Va. App. 681, 683, 426 S.E.2d 497, 499 (1993), the

Court of Appeals construed Code § 65.2-508(2) as requiring a claimant to prove that his employer

maintained its “place of business” in Virginia. In that case, the employer, an Illinois corporation,

was licensed to do business in Virginia but had no offices or facilities in Virginia. It did not pay

licensing fees to Virginia for its trucks or equipment. The claimant received instructions from the

Pennsylvania office and his paychecks were mailed from Milwaukee. The claimant was not

required to live in Virginia and he delivered all loads outside of Virginia. Reasoning that the

statute required more than merely conducting business in Virginia, the Court found the evidence

insufficient to prove the employer maintained its “place of business” in Virginia. Compare CLC

Construction, Inc. v. Lopez, 20 Va. App. 258, 456 S.E.2d 155 (1995) ("CLC did not merely

conduct business in Virginia, but... bookkeeping functions, which included the taxes and payroll,

were performed in Virginia. CLC rented a construction yard in Virginia, where it stored its

equipment and where employees met on a daily basis to go to job assignments").

        In this case, the employee was hired by the employer to supervise deliveries of gasoline

from an Amoco facility in Virginia to various gasoline stations in the Washington, D.C.

metropolitan area. The employee worked from a desk at the Amoco facility. Amoco did not

charge Fleet for the use of its space. The employee had a desk and filing cabinet provided by

Amoco. Fleet installed his telephone line and fax machine. Fleet had three or four tanker trucks at

the facility on a regular basis.

                                                           VWC File No. 186-97-73

       We agree with the Deputy Commissioner that Fleet, by what it provided on its own or

through its arrangement with Amoco, did more than just conduct business but had a place of

business in Virginia.

       The other issue before us is whether the contract of employment was made in Virginia. The

Deputy Commissioner noted there was conflicting evidence as to whether the employee accepted

the offer of employment at the Baltimore meeting or whether he accepted the offer by fax sent from

Virginia. The Deputy Commissioner stated:

         . . . On this issue, there is a conflict in the evidence as to whether the claimant accepted
       the offer of employment at this meeting in Baltimore or whether acceptance occurred by fax
       sent from Virginia. After reviewing all of the evidence presented, we resolve this conflict
       in favor of the claimant. We find that there was no meeting of the minds and no acceptance
       of the offer of employment until after the claimant received the May 22 letter regarding the
       bonus. We found the testimony of Margaret and Samuel Tummino more persuasive on this
       issue. In this regard, we cannot ignore Kevin McNeil's earlier admission in deposition
       testimony that he did not remember whether the offer was accepted in his office or over the
       telephone. This is directly at odds with his testimony before the Commission.

               We find that the agreement was reached in Virginia inasmuch as acceptance of the
       offer came by communication from Kenneth Tummino from Virginia. Therefore,
       jurisdiction over the claim lies with the Commission.

       The Deputy Commissioner considered the entire record and accepted the testimony of

Margaret and Samuel Tummino. While we are not absolutely bound by a Deputy Commissioner‟s

credibility determinations see Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App. 120,127, 384 S.E.

2d 333, 337 (1989), as we said in Watson v. Little Tire Co., Inc., VWC File No. 191-85-97 (March

17, 1999):

        We have long held to the belief that a deputy commissioner‟s credibility determination should
be affirmed unless it is plainly wrong. The deputy commissioner presiding at the hearing is in the best
position to judge the credibility of the witnesses and great deference is given to her opinion. Although
the record is, at best, erratic, we will not reverse a deputy commissioner‟s credibility determination
even though strong evidence supports a contrary result.

                                                           VWC File No. 186-97-73

       Under familiar principles of conflicts law, when the acts “which constitute offer and

acceptance are scattered over more than one state . . . [t]he authorities are reasonably clear that, in

this event, the contract is made at the same time and place „where the last act necessary to the

completion of the contract was done - that is, where the contract first creates a legal obligation.‟"

American Conflicts Law, Robert A. Leflar, et al., § 145, at 408-09 (4th ed. 1986) (citing 1 A.

Corbin, Contracts § 55 et seq. (1963); 1 S. Williston, Contracts § 97 (W. Jaeger 3d ed. 1957);

Restatement of Contracts § 74 (1932)).

       The "mailbox rule" states that an acceptance is effectively communicated when it is put out

of the possession of the offeree. Calamari, John D. and Joseph M. Perillo, The Law of Contracts, §

2-23, at 114-15 (3d ed. 1987). Under this rule, acceptance by mail or, in this case, fax, creates a

contract at the moment of dispatch. Id. The policy behind the mailbox rule is that after acceptance

the offerree has done all that can be done and should be protected against an intervening

revocation. The rule has been generally accepted in the United States with the qualification that the

acceptance must be dispatched in an authorized manner. Generally, the offer authorizes the means

of communication used in transmitting the acceptance. Id.

       In this case, because the offer was communicated via fax, the employee could communicate

his acceptance in the same manner. Under the mailbox rule, the contract of employment was

created in Virginia when the employee faxed his acceptance. See Leflar, § 145, at 409.

       For all these reasons, we AFFIRM the Deputy Commissioner‟s finding that Virginia has

jurisdiction over this claim.

       Interest is payable on this award pursuant to §65.2-707 of the Code of Virginia.

       From the compensation due, a total fee of $8500.00 shall be deducted and paid to Attorney

Harris for legal services rendered.

                                                         VWC File No. 186-97-73

         This case is ordered removed from the Review Docket.


         This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty


cc:      Margaret Tummino
        110 Overview Court
        Stephens City, VA 22655

        Pennsylvania Manufacturing Assoc. inc. Co.
        P. O. Box 6300
        Glen Allen, VA 23058


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