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CHESTER KLINGENSMITH v. DEPARTMENT LABOR AND INDUSTRY (02/04/71)

decided: February 4, 1971.

CHESTER KLINGENSMITH
v.
DEPARTMENT OF LABOR AND INDUSTRY, COMMONWEALTH OF PENNSYLVANIA



Appeal to the Court of Common Pleas of Dauphin County from the decision of the Bureau of Employment Security, Department of Labor and Industry. Appeal transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.

COUNSEL

Elizabeth Bailey, with her James C. Tallant, Bailey and Tallant, for appellant.

James J. Morley, Assistant Attorney General, with him Fred Speaker, Attorney General, for appellee.

President Judge Bowman, and Judges Kramer, Wilkinson, Jr., Manderino, Mencer, and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Opinion by Judge Manderino.

Author: Manderino

[ 1 Pa. Commw. Page 205]

Chester Klingensmith and Donald Armor, both registered licensed barbers, practiced barbering in the

[ 1 Pa. Commw. Page 206]

    same shop which was owned by Chester Klingensmith. Chester Klingensmith did not consider Donald Armor an employee and did not make any unemployment compensation contributions to the Pennsylvania Unemployment Compensation Fund on account of Donald Armor. On June 3, 1969, the Bureau of Employment Security, Department of Labor and Industry, made a determination that Chester Klingensmith should have made contributions to the fund since Donald Armor was in his employment.

On October 21, 1961, an assessment was made against Chester Klingensmith in the amount of Three Hundred Forty-Six Dollars and Ninety-Five Cents ($346.95) covering the third quarter of 1965 to the second quarter of 1968. A re-assessment hearing was held on March 17, 1969, which resulted in the order of June 3, 1969, mentioned above.

Klingensmith appealed to the Dauphin County Court and under the Commonwealth Court Act (Act No. 185 of January 6, 1970); 17 P.S. 211.13 (1970), the appeal was transferred to the Commonwealth Court.

To sustain its order, the Department made ultimate findings in accordance with the statutory definitions to the effect that Klingensmith was an "employer" and that Armor was in Klingensmith's "employment" and that "remuneration" was received by Armor which constituted "wages" within the meaning of the Pennsylvania Unemployment Compensation Law (Act of December 5, 1936, P.L. 2897, art. I, ยง 4); 43 P.S. 753 (1970). These ultimate findings must be supported by the basic findings which must find support in the evidence.

Klingensmith challenges the ultimate findings of the Department that Armor received "remuneration" or "wages". If the Department's ultimate findings concerning "remuneration" or "wages" were incorrect, then ...


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