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YORK GAZETTE COMPANY v. BUREAU EMPLOYMENT SECURITY (02/01/77)

decided: February 1, 1977.

YORK GAZETTE COMPANY
v.
BUREAU OF EMPLOYMENT SECURITY, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY. YORK GAZETTE COMPANY, APPELLANT



Appeal from the Order of the Bureau of Employment Security, Department of Labor and Industry in case of In Re: York Gazette Company, dated March 16, 1976.

COUNSEL

Donn I. Cohen, with him Rees Griffiths, and Liverant, Senft & Cohen, for appellant.

Michael H. Chwastiak, Assistant Attorney General, Herbert W. Hoffman, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 28 Pa. Commw. Page 412]

York Gazette Company (Appellant) has appealed an order of the Bureau of Employment Security (Bureau) denying its petition for reassessment of unemployment compensation fund contributions.

The Department of Labor and Industry (Department) assessed Appellant for additional contributions for the years 1970-1974 for amounts paid by Appellant to its motor carriers which Appellant had failed to include as wages on its quarterly reports. Appellant filed a petition for reassessment which, after hearings thereon, was denied. We must reverse.

Section 301 of the Unemployment Compensation Law*fn1 (Act) provides that employers must make contributions to the fund according to a formula based upon wages paid to employees. Section 304 of the Act, 43 P.S. § 784, requires that employers file reports with the Department and gives the Department power to assess additional contributions upon an employer.

Section 4(1)(2)(B) of the Act, 43 P.S. § 753(1)(2)(B), provides that services performed by an individual for wages shall be "employment" within the meaning of the Act unless 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 or business.

The legal issue presented by this appeal is whether the services of Appellant's carrier-drivers and the payments made for those services are within the foregoing

[ 28 Pa. Commw. Page 413]

    exemption from the definition of "employment" and are, therefore, beyond the scope of the contribution requirements of Section ...


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