1 Pa. Commw. 527 | Pa. Commw. Ct. | 1971
Opinion by
The issue presented for decision in this case is whether appellant must pay unemployment compensation tax based upon commissions paid certain salesmen. While admitting that the sa]esmen were, “employees” and the. commissions were “wages,” as defined in the Unemployment Compensation Law, Act of December-5, 1936, Second Ex. Sess., P. L. 2897, 43 P.S. 751, the appellant claims to be free from the tax under either one. or both of the following two provisions of the same act:
. . Services . performed by an individual for wages shall be deemed to be employment subject to this' act, unless and until it is shown to the satisfaction of the department that — (a) such, individual has been and will continue to be free from control or direction over the performance of such services both under his contract, of service and in fact; and (b) as to such sendees such individual is customarily engaged in an independently established' trade, occupation, profession
“Service performed by an individual for an employer as an insurance agent or real estate salesman or as an insurance solicitor or as a real estate broker or as a solicitor of applications for, or salesman of, slia/res of or certificates issued 6y an investment company, or as an agent of an investment company, if all suck service performed by such individual for suck employer is performed for remuneration solely by way of commission, or services performed by an individual as an unsalaried correspondent for a newspaper, wko receives no compensation, or compensation only for copy accept1 ed for publication.” Section 753(1) (4) (17). (Emphasis supplied.)
Since we conclude that the appellant’s, position upon the proper application of section 753(1) (2) (B) to the facts here presented is sound, it is not necessary for the court to consider the validity or invalidity of the application of the exemption of section 753(1) (4) (17), and we do not express a view thereon.
With regard to section 753(1) (2) (B), the law is clear that the burden is on appellant to produce facts that establish both that its salesmen are free from direction and control, and that the work they performed was done in the course of an independently established trade, occupation, business or profession. The Commonwealth relies upon the very recent case of In Re: International Textbook Company, 92 Dauphin 83 (1969), not only, for this very well established point, but also for the general proposition that the position of the appellant is unsound. In that case, President Judge Kkeider, after reviewing the facts in detail, found that the engineer there involved had previously been a regular employee but was discharged and immediately reengaged as an “independent contractor” to perform the
Tbe instant case is clearly distinguished from tbe International Textbook case and tbe long line of cases therein discussed.and relied upon by appellee because in this case it has been found as a fact that there was no control exercised by appellant oyer tbe salesmen. Amply supported by tbe evidence and other findings, Finding of Fact 5(e) reads as follows: “(e) Tbe manner in. which, the salesmen conducted their activity was at no time directly supervised or controlled by Petitioner; prospective buyers could be contacted at any time; follow-ups were not required; and no reports of activity were necessary. (N.T. 11, 19, 25, 34, 37).” Therefore, appellant has clearly met tbe first half of the requirement, and this line of cases is inapposite.
Tbe basis on which tbe examiner and tbe Bureau found that tbe appellant bad not met bis burden on tbe second half of tbe requirement was that tbe salesmen were licensed under Tbe Pennsylvania Securities Act of 1939, .P. L. 748, 70 P.S. 31, and were considered to be employees by that Act; this was considered to be controlling on tbe matter that they could not be in an independently established business. In this position, the appellee relies heavily upon two cases, both of which we distinguish. In Bureau of Employment Security v. Hecker and Company, 409 Pa. 117, 185 A. 2d 549 (1962), the Supreme Court of Pennsylvania uses language which tends to support appellee’s position, but tbe facts were quite different as stipulated by the parties and quoted by tbe court. Tbe company whose shares tbe. salesman sold on commission provided him
It is this Court’s position that the only Act com trolling in the application of the Unemployment Compensation Law, wherein this unique definition and unusual exemptions are established, is that Act itself. The definitions and exemptions in other Acts are relevant and, on some facts, persuasive but not controlling. Thus, in the Hecker case, the fact that no social security tax was payable under the Social Security Act was not controlling. Indeed, in the recent case of Klingensmith v. Department of Labor and Industry, decided February 4, 1971 by this Court, with an opinion by Judge Mandbrino, the fact that appellant was the registered licensed barbershop owner and therefore responsible under the licensing act for all the barbers in his shop was not controlling on the issue of whether the compensation earned by the other barber in the shop was wages under the Unemployment Compensation Act.
American Diversified Corporation, appellant, a Pennsylvania corporation, sold its stock in Pennsylvania during 1968 and 1969. The entire case of the Commonwealth, appellee, was presented by three witnesses. From these witnesses’ testimony and the exhibits, the appellee would have us conclude that these three witnesses and the other salesmen of the appéllarit were employees and not independent contractors. They all
The Unemployment Compensation Law of Pennsylvania goes very far, and properly so, and places: a very heavy burden on the applicant when it makes payment to anyone who has performed a service to excuse or exempt that payment from the unemployment compensation tax. Few indeed are the instances where that burden can he met, and it was not met in the Keeker case or the Public Finance Service case. We feel it clearly was met here. Therefore, this appeal is sustained and we enter the following
Order
And Now, March 24, 1971, the assessment of unemployment compensation made against American Diversified Corporation by the Bureau of Employment Security, Department of Labor and Industry, Commonwealth of Pennsylvania, as it reflects assessments for wages paid salesmen, the subject of this appeal, is stricken. By stipulation of the parties, this amount was $7,493.00 unpaid tax, and $1,137.00 interest, which amounts were paid under protest and shall be refunded.