60 A.2d 568 | Pa. Super. Ct. | 1948
Argued April 13, 1948.
The claimant in this unemployment compensation case worked for appellant from June 16, 1944, to June 2, 1947, as a collector of periodical subscription payments. *273
The bureau denied benefits to claimant on the ground that he was financially ineligible to receive compensation under section 401 (a) of the Unemployment Compensation Law of December 5, 1936, P.L. (1937) 2897, as amended by the Act of May 29, 1945, P.L. 1145, § 8,
Appellant's contention is that claimant's services were performed under such conditions as to make him an independent contractor, and that the conclusions of the board are not supported by any competent evidence.
On appeal it is the function of this Court to determine whether or not the evidence is sufficient to support the findings and conclusions of the board, as the board's findings of fact, if supported by the evidence and in the absence of fraud, are conclusive, and in such cases the jurisdiction of the Court is confined to questions of law. Palumbo v. UnemploymentCompensation Board of Review,
The relevant portions of section 4 of the Unemployment Compensation Law, as amended,
"(i) `Employe' means every individual, whether male, female, citizen, alien or minor, who is performing or subsequent to January first, one thousand nine hundred thirty-six, has performed services for an employer in an employment subject to this act."
"(j) `Employer' means every — (1) individual, (2) copartnership, (3) association, (4) corporation . . . (I) who or which employed or employs any employe (whether or not the same employe) in employment subject to this act for some portion of each of some twenty (20) days, each day being in a different calendar week, during the calendar year one thousand nine hundred thirty-six, or during any calendar year thereafter, to and including the calendar year one thousand nine hundred and forty-four, or who or which employed or employs any employe in employment subject to this act for some *275 portion of a day during the calendar year one thousand nine hundred and forty-five or for some portion of a day during any calendar year thereafter, . . ."
"(l) . . . (2) The term `Employment' shall include an individual's entire service performed within or both within and without this Commonwealth, if — . . . (B) . . . An individual performing services for remuneration in an employment subject to this act shall be deemed to be performing such services for wages, 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) that such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and (c) that such individual is customarily engaged in an independently established trade, occupation, profession or business."
"(x) `Wages' means all remuneration for employment, (including the cash value of mediums of payment other than cash) . . .," with certain exceptions as enumerated in the Act which are not here involved.
Appellant asserts that no right was reserved to control the manner and method of performance of appellant's work, that no control existed or was exercised, and that the relationship was therefore that of an independent contractor.
We are of the opinion that the only question presented for our determination is whether the evidence is sufficient to support the board's findings which placed claimant within the coverage of the Act.
The issue raised is a narrow one and relates primarily to the question of control, and there is no doubt in our minds from an examination of the record that the evidence was sufficient to establish that appellant exercised a very definite control and direction over the performance *276
of such services as claimant rendered to appellant; and that claimant was an employee and not an independent contractor. It has been said that the master and servant, or employer and employee, relationship exists where the employer has the right to select the employee, the power to remove and discharge him, and the right to direct what work shall be done, and the way and manner in which it shall be done. McColligan v. PennsylvaniaRailroad Co.,
Appellant terminated claimant's services on June 2, 1947. He had worked for appellant continuously from June 16, 1944, and his duties consisted largely of collecting money due on accounts, for which he received a 20 per cent commission. A secondary source of revenue was from a verification of accounts which appellant had with various individuals. The presence and the extent of supervision and control over the manner in which claimant performed his work for appellant are clearly established, and they are inconsistent with the relationship of independent contractor. Appellant acted on an absolute right to terminate claimant's services at any time, and his services were terminated on five days' notice. The subserviency of claimant is obvious from the many exhibits offered by claimant and admitted in evidence. It suffices to quote from a few of them. On October 27, 1944, claimant received from appellant the *277 following instructions: "Enclosed herewith you will find the contracts for West Newton. I will appreciate it if you will make the collections there Monday and Tuesday. In case you cannot make the collections, bring the contracts to the office Monday morning without fail. The man who was going to make the West Newton collections had to make collections in another town for me." Again, on November 14, 1945, he was told: "Please be sure and call on this subscriber and endeavor to collect the amount that is due. In case the subscriber will only pay 50¢ each month, accept the 50¢ until the account is paid in full." On March 14, 1946, he received the following: "We note that you have not reported as many collections or as much money during the current month as you did last month at this time. This should not be, in view of the fact you have quite a few new accounts. . . . Call on this subscriber [Mrs. E.F. Clements] and in case you cannot collect the full amount tell the subscriber we will be satisfied with small monthly payments until the account is paid in full." On March 27, 1947, he was given the following instructions: "Please call on this subscriber [Mrs. Ann Borovick] immediately and collect the amount due. Also make out change of address on this." On February 15, 1946, he received the following from appellant: "We have instructed you to use the first and third columns on your report. It was necessary for us to make up separate reports for you today. We do not have the time to do your work. Please see that this is done properly in the future." On May 15, 1947, this appears: "From time to time we will send you new orders for verification. Such orders are to be verified within 48 hours if possible. At least we should have them back here in the office on the following Friday morning. Return all verifications Special Delivery, deduct the cost of postage from your collection report, or, if you will let us know the amount of postage when you send the verifications, we will include the amount in your check covering verifications." *278
Claimant was controlled in the discharge of his duties and was subject to the direction of appellant in the performance of his work. He was directed as to where he should work, and as to the rendition of his reports. The relationship was subject to termination at the will of appellant. Claimant (1) was not free from control or direction in the performance of his services; (2) his services were not outside the usual course of appellant's business; (3) he was not engaged in an independently established trade, occupation, profession, or business. The findings of fact of the board are supported by substantial evidence, and the board was warranted in concluding that claimant was in the "employment" of appellant within the meaning of the Unemployment Compensation Law, and therefore entitled to compensation.
This case is analogous to that of Leinbach Co., Inc., v.Unemployment Compensation Board of Review,
Finally, it is to be remembered that the Unemployment Compensation Law is a remedial statute, and, excepting the sections imposing taxes, its provisions must be liberally and broadly construed so that its objectives may be completely achieved. MacFarland v. Unemployment Compensation Board ofReview, supra,
Decision is affirmed. *279