decided: August 19, 1982.
JAMES P. CAMERON, SR., PETITIONER
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of James P. Cameron, Sr., No. B-193007.
Richard C. Osterhout, for petitioner.
Charles G. Hasson, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Blatt.
[ 68 Pa. Commw. Page 408]
James P. Cameron, Sr. (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which adopted a referee's determination denying him benefits. It was held that he provided services for an employer as a real estate agent and was therefore subject to the exclusion noted at Section 4(1)(4)(17) of the Unemployment Compensation Law.*fn1
The findings of fact made by the referee after a hearing, at which the claimant and the employer's representative appeared, were:
1. For purposes of this appeal, claimant was last associated with Forrest Realty and Construction Co., Inc. as a Sales Person on a commission basis from September 1, 1971 thru October 15, 1978 and his separation is not at issue.
2. Claimant filed an application for unemployment compensation benefits, effective November 11, 1979, thereby establishing an [sic] base year period of July 1, 1978 thru June 30, 1979.
[ 68 Pa. Commw. Page 4093]
. Claimant was determminined [sic] financially ineligible for unemployment compensation benefits on his application dated November 11, 1979, due to his having no convered [sic] earnings during the base year period.
4. Claimant was a duly licensed real estate salesman with Forrest Realty and Construction Company, Inc. during the base year period and his real estate license was displayed in the employer's office while he was performing his services.
5. Claimant set his own work hours on Mondays thru Fridays while associated with Forrest Realty and Construction Company, Inc. and also paid his own expenses.
6. Claimant kept his own list of prospective clients in his possession, while performing his services for Forrest Realty and Construction Company, Inc.
The referee concluded that Section 4(1)(4)(17) of the Law required that the claimant's earnings not be computed in determining his eligibility because they were not wages under Section 4(x) of the Law.*fn2 The Board affirmed and the instant appeal followed.
In unemployment compensation cases, the claimant has the burden of proving eligibility for benefits. Hughes v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 448, 414 A.2d 757 (1980). And where, as here, the party with the burden of proof below does not prevail there, our scope of review is limited to a determination of whether or not an error of law was committed or the findings of the Board can be sustained without a capricious disregard of competent evidence. Id. Here, we believe that the referee's findings were insufficient to enable
[ 68 Pa. Commw. Page 410]
him to draw the legal conclusion that the claimant was subject to the exclusion provided by Section 4(1)(4)(17).
The dispositive issue in this appeal is whether or not the claimant was primarily employed or functioned as a real estate agent for his employer, not whether or not he held a valid real estate license. The referee's findings, which the Board adopted, refer to the claimant's "services" but fail to distinguish what he actually did -- whether he primarily sold real estate (i.e., lots or lots with existing structures) for the employer or was, as he alleges, a saleman of the employer's service of constructing homes. We believe that such a finding is necessary to determine whether or not the exclusion applies. Being a seller of house construction, which does not require a real estate license,*fn3 is analogous, we believe, to the sale of any other product notwithstanding the fact that the structure becomes realty when completed.
Should the Board or referee find, upon remand, that the claimant is primarily employed as a salesman of housing construction, then sufficient findings must also be made as to the existence of an employee-employer relationship covered under the Law.
Generally, where an employer retains control and direction over a salesman who is paid solely by commission, a relationship exists which will permit the employee to receive benefits. Bureau of Employment Security v. Hecker & Co., 409 Pa. 117, 185 A.2d 549 (1962) (an analogous factual situation addressing the Section 4(1)(4)(17) exclusion and commission salesmen). Evidence showing direction and control includes:
[ 68 Pa. Commw. Page 411]
being required to be in the employer's office during designated hours;*fn4 a duty to report or meet with the employer;*fn5 provision by the employer of office space, equipment and a telephone;*fn6 the lack of authority of the employee to negotiate with the customer commissions or sale prices;*fn7 approval of all sales by the employer;*fn8 an assigned territory;*fn9 the withholding of social security and/or federal income taxes from commissions paid;*fn10 whether commissions issue from the customer or the employer;*fn11 and/or the supplying of sales leads by the employer.*fn12
As we said in O'Brien v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 272, 276, 379 A.2d 805, 807 (1977), "[O]ur review of the record discloses a dearth*fn13 of evidence upon
[ 68 Pa. Commw. Page 412]
which such findings could be based." We will therefore reverse the decision below and remand this matter to the Board for further proceedings not inconsistent with this opinion.
And Now, this 19th day of August, 1982, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby reversed and this matter is remanded to said Board for further proceedings not inconsistent with this opinion.
Reversed and remanded.