Appeal from the Order of the Unemployment Compensation Board of Review in the case of Emile Proul, No. B-174364.
Thomas D. MacMullan, for petitioner.
Elsa D. Newman-Silverstine, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt. Judge Rogers dissents. This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.
[ 58 Pa. Commw. Page 247]
The petitioner*fn1 appeals here from an order of the Unemployment Compensation Board of Review which granted benefits to the claimant.*fn2 It contends that the claimant was self-employed and so was ineligible for benefits under Section 402(h) of the Unemployment Compensation Law.*fn3
The claimant had worked for the petitioner for 10 years as a truck driver and was laid off on November 10, 1978. He owned his own truck, which he leased to the petitioner, and he was paid on a separate basis for the use of the truck and for making deliveries. The Office of Employment Security found him ineligible for unemployment compensation benefits because he was
[ 58 Pa. Commw. Page 248]
not an employee within the meaning of the Law. The referee reversed that determination, and the Board affirmed the referee's award of benefits, making the following relevant findings concerning the existence of an employment relationship*fn4 between the claimant and the petitioner:
5. The claimant received two separate checks each week from DeBolt Transfer, Inc.; one check was for the rental of his equipment, and the other check was for the claimant's wages for driving the truck.
6. The claimant could not use his equipment for any other deliveries, only those that he was dispatched to by DeBolt Transfer, Inc.
7. The claimant, after accepting a trip assignment, was required to follow the route issued him by his employer.
The petitioner's primary argument is that the Board's findings constituted a capricious ...