68 Pa. Commw. 525 | Pa. Commw. Ct. | 1982
Opinion by
Montgomery Township (Petitioner) appeals here from an order of a hearing examiner of the Bureau of Social Security for Public Employes (Bureau) of the Pennsylvania Department of Labor and Industry affirming a Bureau adjustment determination which assessed Petitioner for unremitted social security contributions in the amount of $1,244.96. We affirm.
Thereafter, at a date which is not disclosed in the record before us, the Bureau reviewed Petitioner’s records and discovered that the Township had failed to remit any social security contributions for sums of money it had paid to Elmer Hagan, Jr., the fire mar-shall and to Yernon Sinn, the occupation tax collector in the years of 1975 through 1977. Since the Bureau considered these payments to be “wages” within the intendment of Section 1(g) of Petitioner’s July 5, 1968 agreement, and since it considered both of the individuals involved to be “ employe[s]” within the intendment of Section 1(h) of the agreement, the Bureau subsequently entered an adjustment determination against Petitioner for the unremitted social security contributions it calculated Petitioner should have paid to the Bureau. Petitioner subsequently refused to pay this assessment, however, and appealed the Bureau’s determination to a Bureau hearing examiner. At a hearing conducted on September 26,
Our review of Bureau adjudications is governed by the provisions of Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704, which limits our review to determining whether the adjudication below was supported by substantial evidence, whether an error of law was committed, or whether the petitioner’s constitutional rights were violated.
Before this Court, Petitioner initially alleges that it was denied procedural due process in the proceedings below since the attorney the Secretary appointed to act as hearing examiner came from the same office in the Department of Labor and Industry as the attorney who represented the Bureau at the September 26,1980 hearing.
It is well established that the due process clause of the fourteenth amendment of the United States
In Thorp, this Court declined to invalidate an adjudication on due process grounds where both the
Petitioner next alleges that the hearing examiner erred as a matter of law by concluding that the remuneration Petitioner’s fire marshall received from the township constituted “wages” within the intendment of Section 1(g) of Petitioner’s July 5, 1968 agreement with the ‘ ‘ State Agency. ’ ’
Section 1(g) of Petitioner’s social security agreement defines “wages” as
all remuneration for employment . . . except that such term shall not include that part of such remuneration which even if it were paid for employment within the meaning of the Federal Insurance Contributions Act would not constitute wages within the meaning of that Act. (Emphasis added.)
Section 204(a) of the Federal Insurance Contributions Act, 26 U.S.C. §3121 (a), in turn, defines “wages” as “remuneration for employment” and lists numer
Amounts paid specifically — either as advances or reimbursements — for traveling or other bona fide ordinary and necessary expenses incurred or reasonably expected to be incurred in the business of the employer are not wages. Traveling and other reimbursed expenses must be identified either by making a separate payment or by specifically indicating the separate amounts where both wages and expense allowances are combined in a single payment.1
In its brief to this Court, Petitioner argues that the hearing examiner erred by concluding that the remuneration paid to Petitioner’s fire marshall constituted “wages” within the intendment of Section 1(g) of the agreement, since the record indicates that the remuneration the fire marshall received was simply a reimbursement of expenses, and therefore excludible under the provisions of Treas. Eeg. §31.3121(a)-l(h). Treas. Eeg. 31.3121(a)-l(h), however, requires a specific indication by the employer that the remuneration paid is for reimbursement of expenses, and if that certification isn’t present, the remuneration involved is not excludible even if it is in fact spent for business related expenses. See Thompson v. Weinberger, 548 F.2d 1122 (4th Cir., 1976). In the present case, the record shows that the Petitioner paid its fire marshall a fixed amount twice a year regardless of his actual expenses, and that the fire marshall never submitted any expense vouchers or receipts to Petitioner to verify expenses. In addition, nothing in the record before us indicates that
Finally, Petitioner contests the hearing examiner’s conclusion that Petitioner’s fire marshall and occupation tax collector were “ employe [s] ” within the intendment of Section 1(h) of Petitioner’s July 5, 1968, social security agreement.
Section II of Petitioner’s agreement extends social security benefits to all township “ employe [s]” which term, as noted above, is defined in Section 1(h) of the agreement as “an employe as defined in Section 210 (j) of the Social Security Act and shall include an officer of the Poltical Subdivision.” Section 210(j) of the Social Security Act, 42 U.S.O. §410(j), in turn, provides for an expansive definition of the term ‘ ‘ employee” which includes, inter alia, those individuals “who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee. ’ ’
In Pennsylvania the common law test for an employer-employee relationship has been expressed as follows:
The relationship of employer and employe exists when a party has the right to select the employe, the power to discharge him, and the right to direct both the work to be done and the manner in which such work shall be done. McColligan v. Pennsylvania Railroad Co., 214 Pa. 229, 63 A. 792 (1905). See, also Smalich v.*533 Westfall, 440 Pa. 409, 269 A.2d 476 (1970); Ragano v. Socony Vacuum Oil Co., 376 Pa. 271, 101 A.2d 686 (1954). The duty to pay an employe’s salary is often coincident with the status of employer, but is not solely determinative of that status. Rodgers v. Washington County Institution District, 349 Pa. 357, 37 A.2d 610 (1944).
Sweet v. Pennsylvania Labor Relations Board, 457 Pa. 456, 462, 322 A.2d 362, 365 (1974).
Applying the above test to the facts of this case we note that during the years at issue in this appeal Section 3(b) of Montgomery Township’s fire prevention code (code) expressly gave the township’s Board of Supervisors the power to both appoint and dismiss the township’s fire marshall. Other provisions of the code expressly defined and limited the powers and duties of the fire marshall who, under the provisions of Section 3(b), served “at the pleasure of the Board of Supervisors.” In addition, by having the power to amend these provsions, it is clear that Petitioner had the right to control both the duties of the fire marshall and the manner in which he performed them. Finally, as we noted above, the fire marshall received a fixed amount for his services which was paid directly to him by the township. We believe that these undisputed facts, viewed in their entirety, can only lead to the conclusion that Petitioner’s fire marshall was an employee, as opposed to an independent contractor, during the years at issue in this appeal, and that the hearing examiner therefore correctly concluded that Petitioner’s fire marshall was an “employee” within the intendment of Section 1(h) of Petitioner’s social security agreement during the years 1975 through 1977.
With respect to Petitioner’s occupation tax collector, the record shows that the individual involved
Accordingly, we will enter the following
Order
Now, September 1, 1982, the order of the Bureau of Social Security For Public Employes, dated December 18,1980, is affirmed.
This decision was reached prior to the resignation of Judge Mencer.
An identical provision is found at Section 404.1045 of Title 20 of the Code of Federal Regulations.