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HELEN B. JOCHYNEK v. COMMONWEALTH PENNSYLVANIA (10/03/77)

decided: October 3, 1977.

HELEN B. JOCHYNEK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Helen B. Jochynek, No. B-134998.

COUNSEL

E. J. Julian, with him Thomas J. Terputac, for petitioner.

Michael Klein, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

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

Author: Wilkinson

[ 32 Pa. Commw. Page 87]

This is an appeal of an order of the Unemployment Compensation Board of Review (Board) denying unemployment benefits to the petitioner Helen B. Jochynek (claimant) following her removal from office as a local registrar of vital statistics by the Pennsylvania Department of Health. The issue presented for

[ 32 Pa. Commw. Page 88]

    decision in this case is whether a local registrar of vital statistics is an employee of the Commonwealth within the meaning of Section 402(h) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(h).

The claimant was appointed a local registrar of the Department of Health (Department), Division of Vital Statistics on October 20, 1971 for Registration District No. 63575 which comprised fifteen municipalities in Washington County. The Division of Vital Statistics provided her with forms for the issuance of birth and death certificates and copies thereof as well as other forms for collecting and preserving vital statistics. She was compensated on a fee basis*fn1 for each certificate transmitted to the Department from funds appropriated for the Department of Health, an accounting and payment of which was made monthly. In addition, the claimant retained the sums paid by the public for copies of such certificates. From October 20, 1971 to August 10, 1975 claimant performed the duties of local registrar to the satisfaction of both the public and the Department. She used her home as an office where she was required to be on call 24 hours a day.

The claimant was removed from her position without cause on August 10, 1975. She was found eligible for special unemployment assistance benefits by the Bureau of Employment Security on November 14, 1975. On appeal by the Department of Health a referee denied benefits pursuant to Section 402(h) of the Law, 43 P.S. § 802(h) finding that the claimant was self-employed. The Board upheld the decision of the

[ 32 Pa. Commw. Page 89]

    referee and adopted her findings of fact and conclusions of law.

We believe, contrary to the Board's conclusion, that the claimant was not a self-employed businesswoman but that she was an employee of the Department of Health within the meaning of Section 402(h) of the Law. The Law defines an employee as one who performs services for an employer in employment. ...


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