the position of the defendant in the instant case.) The Supreme Court in reversing the judgments of the Circuit Court and affirming those of the District Court, 59 F.Supp. 84, stated:
'The Government here relies entirely on the contract, conceding that otherwise the band leaders are independent contractors employing the musicians. * * * '
'In United States v. Silk, supra, (67 S. Ct. 1463), we held that the relationship of employer-employee, which determines the liability for employment taxes under the Social Security Act was not to be determined solely by the idea of control which an alleged employer may or could exercise over the details of the service rendered to his business by the worker or workers. Obviously control is characteristically associated with the employer-employee relationship but in the application of social legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service. In Silk, we pointed out that permanency of the relation, the skill required, the investment in the facilities for work and opportunities for profit or loss from the activities were also factors that should enter into judicial determination as to the coverage of the Social Security Act. It is the total situation that controls. * * * ' 67 S. Ct. 1549.
The court concluded that the elements of employment marked the band leaders as the employers rather than the proprietors of the ballrooms.
Treasury Regulation 90, promulgated under Title IX of the Social Security Act, Art. 205, provides, inter alia:
' * * * In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor, not an employee.'
I therefore conclude that the facts in this case during the entire period covered by the employment of this wage earner unmistakenly indicate that Pennsylvania in its dealings with Western was only concerned with the results to be obtained; that for the period prior to January 1, 1940, or thereafter, not a solitary instance of the exercise of control over personnel or the manner of operation existed.
that at none of the times involved was Western controlled by Pennsylvania; that Western has not at any time since December 31, 1936, been an 'employer' within the meaning of Section 1532(a) of the Internal Revenue Code; that the wage earner was fully and currently insured at the time of his death and that the claimant is entitled to widow's current insurance benefits and child's insurance benefits on behalf of Joseph H. Martin and Patricia L. Martin, under the provisions of the Social Security Act
Accordingly, defendant's motion for summary judgment is denied, plaintiffs' motion for summary judgment is granted, and the decision of the Social Security Board dated August 11, 1945, is reversed and the cause remanded, 42 U.S.C.A. § 405(g) with direction to the Board to compute the benefits to which plaintiffs are entitled under the Act on the basis of the total wages earned since January 1, 1937, to wit, the sum of $ 12,798.28, which sum shall be used in determining the amount of widow's current insurance benefits as provided in Section 202(e) of the Social Security Act, 42 U.S.C.A. § 402(e), payable to Hannah Martin, and child's insurance benefits as provided in Section 202(c) of the Social Security Act, 42 U.S.C.A. § 402(c), payable on behalf of Joseph H. Martin and Patricia L. Martin.
Counsel for defendant will compute the benefits to which plaintiffs are entitled under the Act and submit same for approval to counsel for plaintiffs within thirty (30) days. Counsel for plaintiffs will thereupon draft and submit formal judgment in accordance therewith.