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JAMES M. BITER v. COMMONWEALTH PENNSYLVANIA (12/22/78)

decided: December 22, 1978.

JAMES M. BITER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Appeal from the Order of the Department of Labor and Industry in case of In Re: James M. Biter, Account No. 11-NC.

COUNSEL

Blair V. Pawlowski, with him Pawlowski and Tulowitzki, for petitioner.

Samuel F. Rizzo, Assistant Attorney General, for respondent.

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

Author: Mencer

[ 39 Pa. Commw. Page 392]

James M. Biter (petitioner) owns and operates six buses which are supplied under a contract for transportation of students of Penn-Cambria School District (School District). On August 13, 1975, the Bureau of

[ 39 Pa. Commw. Page 393]

Employment Security, Department of Labor and Industry (Bureau) notified petitioner that he was being assessed for unpaid unemployment compensation contributions on behalf of the drivers of his buses to whom he paid wages. The Bureau claimed that petitioner owed $2,345.42, with accrued interest of $580.62, for the period between January 1971 and July 1975. Petitioner filed a petition for reassessment which was denied following a hearing. This appeal followed.

The only issue on appeal is whether the bus drivers are engaged in "employment" and are petitioner's employees within the meaning of Section 4(l)(2)(B) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 753(l)(2)(B). If, as the Bureau determined, the drivers are petitioner's employees, petitioner is liable for the contributions under the Act.

Section 4(l)(2)(B) provides:

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 or business.

Petitioner contends that, on the basis of the findings of fact and the record, it must be concluded that the drivers are free from his control and are not his employees and that the drivers are either ...


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