Pohopek v. McElroy Truck Lines, Inc.

Decision Date05 September 2001
Docket NumberNo. 1314,1314
Citation780 A.2d 383,140 Md. App. 235
PartiesAlfons James POHOPEK v. McELROY TRUCK LINES, INC.
CourtCourt of Special Appeals of Maryland

David M. Kopstein (Dross, Levenstein Perilman & Kopstein, Seabrook, Irving Dross, Dross, Levenstein, Perilman & Kopstein, Waldorf, on the brief), for appellant.

Albert B. Randall, Jr. (Robert T. Franklin and Prokopik on the brief), Baltimore, for appellee. Argued before SONNER, CHARLES E. MOYLAN, JR. (retired, specially assigned) and RAYMOND G. THIEME, JR. (retired, specially assigned) JJ.

SONNER, Judge.

Appellant, Alfons James Pohopek, appeals the decision of the Circuit Court for St. Mary's County that reversed an order of the Maryland Workers' Compensation Commission ("the Commission"), which held that Maryland had jurisdiction over Pohopek's workers' compensation claim. The Commission found that Pohopek was a "covered employee," as defined by Section 9-203 of the Labor & Employment Article of the Maryland Code. Appellee, McElroy Truck Lines, Inc. ("McElroy"), appealed the Commission's order to the circuit court, where it filed a motion for summary judgment. After a hearing, the circuit court granted McElroy's motion and found Maryland did not have jurisdiction over Pohopek's claim. Upon our review, we find the Commission's original ruling to be correct, and reverse the circuit court.

Pohopek, a St. Mary's County resident, answered an employment advertisement listed by McElroy in The Enterprise, a southern Maryland newspaper. McElroy's principal place of business is Cuba, Alabama, but Pohopek applied for a truck driver position through a McElroy representative in North Carolina. Pohopek accepted an employment offer from McElroy and attended orientation and training sessions in North Carolina. At McElroy's request, Pohopek, a licensed commercial truck driver in Pennsylvania, obtained a Maryland commercial driver's license.

As part of his employment agreement with McElroy, Pohopek was to keep the company-owned tractor-trailer truck near his residence in St. Mary's County on the weekends. During the weekends, Pohopek was responsible for the safekeeping of the truck, as well as regular maintenance, including cleaning and waxing. Often, the truck was fully loaded for a Monday morning delivery, and Pohopek was also responsible for the safe storage of those goods. In the early morning hours each Monday, Pohopek would conduct a pre-trip checklist of the truck, which consisted of testing the engine, brakes, lights, and other routine mechanical components. Pohopek then, in accordance with federal requirements, updated his log book.

Setting out from his home in Maryland on Monday mornings, Pohopek drove to various states along the eastern seaboard, including states as far north as New Hampshire and as far south as Alabama. During the week, Pohopek sometimes drove through Maryland, making regular deliveries and pickups. On Fridays, Pohopek picked up his last load of the week to be delivered Monday morning, and then returned home. McElroy withheld Maryland state taxes from Pohopek's paychecks and mailed those paychecks to Pohopek's home in Maryland.

After working for McElroy for approximately six months, Pohopek was involved in an accident while traveling in South Carolina in April 1998. In June 1998, Pohopek filed a workers' compensation claim in Maryland for the personal injuries he suffered in the accident. After a hearing on April 26, 1999, the Commission held that Pohopek was a "covered employee," as defined by Section 9-203 of the Labor & Employment Article of the Maryland Code. McElroy appealed to the circuit court and, on June 29, 2000, the Circuit Court for St. Mary's County held a hearing on the issue of Maryland's jurisdiction over Pohopek's claim. On July 7, 2000, the circuit court ruled, in a written opinion, that Pohopek was not regularly employed within Maryland.

Discussion

When granting summary judgment, the circuit court makes rulings as a matter of law and does not resolve disputed issues of fact. Under Maryland Rule 2-501 (2001), the standard of review for summary judgment is whether the circuit court is legally correct. Bowen v. Smith, 342 Md. 449, 454, 677 A.2d 81 (1996); Nationwide Ins. Cos. v. Rhodes, 127 Md.App. 231, 235, 732 A.2d 388 (1999); Commercial Union Ins. Co. v. Harleysville Mut. Ins. Co., 110 Md.App. 45, 51, 675 A.2d 1059 (1996). The question before this Court is whether the circuit court was legally correct in ruling that Pohopek was not a "covered employee," as defined by the Labor & Employment Article of the Maryland Code.

Section 9-203 of the Maryland Code reads as follows:

§ 9-203. Site of employment.
(a) In general.—Except as otherwise expressly provided, an individual is a covered employee while working for the employer of the individual:
(1) in this State;
(2) outside of this State on a casual, incidental, or occasional basis if the employer regularly employs the individual within this State; or
(3) wholly outside the United States under a contract of employment made in this State for the work to be done wholly outside of the United States.
(b) Incidental service in State.
(1) An individual is not a covered employee while working in this State for an employer only intermittently or temporarily if:
(i) the individual and employer make a contract of hire in another state.
(ii) neither the individual nor the employer is a resident of this State;
(iii) the employer has provided workers' compensation insurance coverage under a workers' compensation or similar law of another state to cover the individual while working in this State;
(iv) the other state recognizes the extraterritorial provisions of this title; and
(v) the other state similarly exempts covered employees and their employers from its law.
(2) If an individual is exempted from coverage under this subsection and injured in this State while working for the employer of the individual, the sole remedy of the individual is the workers' compensation or similar law of the state on which the exemption is based.
(3) A certificate from an authorized officer of the workers' compensation commission or similar unit of another state certifying that the employer is insured in that state and had provided extraterritorial insurance coverage for the employees of the employer while working within this State is prima facie evidence that the employer carries that compensation insurance.
(c) Outside State.—Except as otherwise expressly provided, an individual who is employed wholly outside of this State is not a covered employee.

Md.Code (1999 Repl.Vol.), LAB. & EMPL., § 9-203. The Code clearly expresses that the site of one's employment is the critical element for determining if an employee is a "covered employee," and, consequently, if Maryland has jurisdiction over a claim. Unfortunately, the determination of whether an employee either works within the State or outside of the State is not a simple calculation.

The Code recognizes the difficulty of this determination, and, to describe more accurately the site of employment, makes use of the descriptive words: wholly, regularly, and casually.1 For example, the Code addresses: (1) employees that are wholly employed within the State in Section 9 203(a)(1); (2) employees that are wholly employed outside the State in Section 9-203(c); (3) employees that are regularly employed within the State, but are casually employed outside the State in Section 9-203(a)(2); and, (4) employees that are casually employed within the State, but are regularly employed outside the State in Section 9-203(b).

The circuit court, applying Section 9-203(a)(2), ruled that Pohopek "was not regularly employed in the State of Maryland because [Pohopek's] work outside the State of Maryland was not on a casual, incidental or occasional basis." We disagree that Pohopek's work within Maryland was not conducted on a regular basis.

This Court has stated that "[t]he word `regular' implies a uniform course of conduct." Dixon v. Able Equipment Co., Inc., 107 Md.App. 541, 547, 668 A.2d 1009 (1995). Because of Pohopek's weekend duties and responsibilities, he essentially worked a seven-day work week, spending every Friday through Monday in Maryland, and on the road every Tuesday through Thursday, as well as parts of Monday and Friday. There is "no particular formula for establishing `regular' employment," id., and we must evaluate each set of circumstances on a case-by-case basis. Here, the consistency of...

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4 cases
  • McElroy Truck Lines, Inc. v. Pohopek
    • United States
    • Maryland Court of Appeals
    • 17 Junio 2003
    ...Appeals. That court agreed with the Commission and, thus, reversed the judgment of the circuit court. Pohopek v. McElroy Truck Lines, 140 Md.App. 235, 237, 780 A.2d 383, 384 (2001). We shall affirm the Judgment of the Court of Special The respondent sought employment with the petitioner by ......
  • Uninsured Employers v. W.M. Schlosser Co.
    • United States
    • Court of Special Appeals of Maryland
    • 7 Julio 2009
    ...in Maryland, his work in the District of Columbia must be said to be casual, incidental, or occasional. Pohopek v. McElroy Truck Lines, Inc., 140 Md.App. 235, 242, 780 A.2d 383 (2001), aff'd, 375 Md. 574, 826 A.2d 474 (2003). As a result, Johnson is a covered employee under LE § 9-203(a). J......
  • Hodgson v. FLIPPO CONSTRUCTION CO., INC.
    • United States
    • Court of Special Appeals of Maryland
    • 15 Septiembre 2005
    ...for their conflicting positions is understandable. The Pohopek case received its first appellate review in Pohopek v. McElroy Truck Lines, Inc., 140 Md.App. 235, 780 A.2d 383 (2001). The issue before this Court was whether Pohopek, "a Maryland resident, employed as a truck driver by a truck......
  • Fitzgerald v. R & R TRUCKING, INC., 58
    • United States
    • Court of Special Appeals of Maryland
    • 11 Diciembre 2003
    ...and, therefore, that Maryland has jurisdiction over his claim. For support, appellant primarily cites Pohopek v. McElroy Truck Lines, Inc. 140 Md.App. 235, 780 A.2d 383 (2001) [Pohopek I], aff'd, McElroy Truck Lines, Inc. v. Pohopek, 375 Md. 574, 826 A.2d 474 (2003) [Pohopek II].2 According......

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