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AMERICAN DIVERSIFIED CORPORATION v. BUREAU EMPLOYMENT SECURITY (03/24/71)

decided: March 24, 1971.

AMERICAN DIVERSIFIED CORPORATION
v.
BUREAU OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY



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

COUNSEL

John C. Sullivan, with him Nauman, Smith, Shissler & Hall, for appellant.

James J. Morley, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Manderino, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 1 Pa. Commw. Page 528]

The issue presented for decision in this case is whether appellant must pay unemployment compensation tax based upon commissions paid certain salesmen. While admitting that the salesmen were "employees" and the commissions were "wages," as defined in the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. 2897, 43 P.S. 751, the appellant claims to be free from the tax under either one or both of the following two provisions of the same act:

". . . 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

[ 1 Pa. Commw. Page 529]

    or business." Section 753(1)(2)(B). (Emphasis supplied.)

"Service performed by an individual for an employer as an insurance agent or real estate salesman or as an insurance solicitor or as a real estate broker or as a solicitor of applications for, or salesman of, shares of or certificates issued by an investment company, or as an agent of an investment company, if all such service performed by such individual for such employer is performed for remuneration solely by way of commission, or services performed by an individual as an unsalaried correspondent for a newspaper, who receives no compensation, or compensation only for copy accepted for publication." Section 753(1)(4)(17). (Emphasis supplied.)

Since we conclude that the appellant's position upon the proper application of section 753(1)(2)(B) to the facts here presented is sound, it is not necessary for the court to consider the validity or invalidity of the application of the exemption of section 753(1)(4)(17), and we do not express a view thereon.

With regard to section 753(1)(2)(B), the law is clear that the burden is on appellant to produce facts that establish both that its salesmen are free from direction and control, and that the work they performed was done in the course of an independently established trade, occupation, business or profession. The Commonwealth relies upon the very recent case of In Re: International Textbook Company, 92 Dauphin 83 (1969), not only for this very well established point, but also for the general proposition that the position of the appellant is unsound. In that case, President Judge Kreider, after reviewing the facts in detail, found ...


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