32 Pa. Commw. 86 | Pa. Commw. Ct. | 1977
Opinion by
This is an appeal of an order of the Unemployment Compensation Board of Review (Board) denying unemployment benefits to the petitioner Helen B. Jochynek (claimant) following her removal from office as a local registrar of vital statistics by the Pennsylvania Department of Health. The issue presented for
The claimant was appointed a local registrar of the Department of Health (Department), Division of Vital Statistics on October 20,1971 for Registration District No. 63575 which comprised fifteen municipalities in Washington County. The Division of Vital Statistics provided her with forms for the issuance of birth and death certificates and copies thereof as well as other forms for collecting and preserving vital statistics. She was compensated on a fee basis
The claimant was removed from her position without cause on August 10, 1975. She was found eligible for special unemployment assistance benefits by the Bureau of Employment Security on November 14, 1975. On appeal by the Department of Health a referee denied benefits pursuant to Section 402(h) of the Law, 43 P.S. §802(h) finding that the claimant was self-employed. The Board upheld the decision of the
We believe, contrary to the Board’s conclusion, that the claimant was not a self-employed businesswoman but that she was an employee of the Department of Health within the meaning of Section 402(h) of the Law. The Law defines an employee as one who performs services for an employer in employment. Section 4(i) of the Law, 43 P.S. §753(i). Employment is defined as follows:
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 services such individual is customarily engaged in an independently established trade, occupation, profession or business.
Section 4(1) (2) (B), 43 P.S. §753(1) (2) (B).
The employer must satisfy both subsections (a) and (b) to exclude itself from coverage under the exception on the ground the individual was an independent contractor. Bureau of Employment Security v. Hecker & Co., 409 Pa. 117, 185 A.2d 549 (1962). Since we find that the record fails to establish that the employer has satisfied subsection (b) we need not discuss in this case subsection (a).
The referee relied on Dawkins Unemployment Compensation Case, 358 Pa. 224, 56 A.2d 254 (1948), in finding the claimant was an independent contractor and hence became an unemployed businesswoman within the meaning of Section 402(h) of the Law upon her removal as a local registrar. The facts in Dawkins, however, where the former employee resigned in or
The record fails to show that the claimant was employed by anyone other than the Department while she was local registrar or that she was similarly employed before or after her employment with the Department. She had no proprietary interest in the issuance of the certificates except for her commission and is now unable to perform these services. The rec
Accordingly, we will enter the following
Order
Now, October 3, 1977, the order of the Unemployment Compensation Board of Beview No. B-SUA-75-8L-571, Decision No. B-134998, dated September 23, 1976, affirming an order of the referee, dated November 24, 1975, is hereby reversed.
The parties have not raised the question of whether claimant is disqualified under the provisions of Section 1002(2) of the Law, 43 P.S. §892(2). Therefore, we express no opinion on this point.