25 A.2d 85 | Pa. Super. Ct. | 1941
Argued December 11, 1941. The Unemployment Compensation Board of Review held that the American Writing Machine Company *300 was the employer of Alexander Levin, and that he was entitled to unemployment compensation. The company has appealed from the board's decision.
Appellant contends that Levin was an independent contractor. Levin delivered typewriters and office equipment for appellant during 1937, 1938, and 1939. He undertook this work under a written contract with appellant in which he was identified "not as an employee, but as an independent contractor." The contract provided that he purchase a new motorcycle and sidecar lettered with appellant's title; that for appellant's security he carry liability insurance in a stated amount against claims of third persons for personal injury or property damage because of his operation of the vehicle; that he work an average of eight hours per day, six days per week; that he deliver typewriters within a radius of fifty miles of Philadelphia; and that he receive compensation of $37.50 per week. The contract was to be in force for a year from March 8, 1937, but was terminable at any time by either party on sixty days' written notice.
Appellant terminated Levin's services on January 10, 1940. He then filed a claim for unemployment compensation with the Bureau of Employment and Unemployment Compensation (Department of Labor and Industry) on January 12th, and it was denied on the basis of appellant's report that he was an independent contractor. He appealed from this disallowance. The referee, after hearing his testimony, found as a fact that "claimant was employed as a driver by the American Writing Machine Company, a subject employer, of Philadelphia, Pa., from January of 1937 to January tenth, 1940, and was originally paid a weekly salary of $37.50, and was later reduced to $33 per week. . . . . ." The referee sustained the appeal. The board deemed the relationship of master and servant to exist between the American Writing Machine Company, the appellant *301 here, and Alexander Levin, the claimant, and affirmed the referee and the bureau which, upon the record's being remanded, concluded that appellant was the employer of the claimant within the provisions of the act.
We shall not repeat what we said in Palumbo v. UnemploymentCompensation Board of Review,
We have no doubt that claimant was appellant's employee, within the provisions of the act, and that this relationship was established by the evidence.
There was no other contract between appellant and claimant than the one promising him payment of $37.50 per week, which was reduced to $33 some time in 1938. He was told to report at 8:45 A.M. when appellant's other personnel reported; his lunch hour was between 12 M. and 1 P.M., or between 1. P.M. and 2 P.M., depending upon the work. He was told that if deliveries were required between 12 M. and 1 P.M. he would have to make them. Nominally he was free to handle business for other persons, but was actually told he could not lose time on deliveries for others. He collected money due appellant, and was instructed to account for it as soon as possible.
Appellant offered in evidence (1) the written contract; (2) a certificate executed by claimant accepting responsibility as an independent contractor for all payments under federal, state, and local laws relative to unemployment compensation, insurance, or old age retirement benefits; and (3) a fidelity bond covering the discharge of his duties as an individual, executed by *302 him as principal, as distinguished from a blanket form covering all appellant's acknowledged employees.
We think the control embodied in these circumstances of claimant's work for appellant clearly justifies the determination that he was its employee. Healey v. Carey, Baxter Kennedy,Inc., et al.,
The courts of other jurisdictions, in actions to determine under unemployment compensation laws the legal character of services rendered, have considered the absolute right of the recipient to terminate them as tending to constitute the person rendering the services an employee. In Equitable Life InsuranceCo. of Iowa v. Industrial Commission,
Under workmen's compensation statutes corresponding determinations of the nature of particular services have been made. In Glielmi v. Netherland Dairy Co., Inc., et al.,
See, also, Wilson v. Times Printing Co. et al.,
The reasoning for which these decisions stand was apparently rejected in one case which has been brought to our attention, that of Texas Co. v. Higgins, 2 Cir.,
In Shields v. William Freihofer Baking Co., supra, a workmen's compensation case, there was a written agreement *306 wherein the claimant was designated as a "distributor." Nevertheless, we held on the facts established in that case that the claimant was the employee of defendant.
In J.G. Leinbach Co., Inc., v. Unemployment Compensation Boardof Review,
It seems to us that the general effect of the contract between the claimant and appellant in the present case is well characterized by the language of Judge CARDOZO in Glielmi v.Netherland Dairy Co., Inc., et al., supra,
In Industrial Commission v. Northwestern Mutual Life InsuranceCo., supra, the contracts of the claimants also provided that their relation with the insurance company was not one of employer and employee, but the court there observed that what is done under a contract determines the relation rather than what the contract says.
The decision of the board is affirmed.