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MONTGOMERY TOWNSHIP v. COMMONWEALTH PENNSYLVANIA (09/01/82)

decided: September 1, 1982.

MONTGOMERY TOWNSHIP, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, BUREAU OF SOCIAL SECURITY FOR PUBLIC EMPLOYEES, RESPONDENT



Appeal from the Order of the Bureau of Social Security for Public Employees in case of In the Matter of: Bureau of Social Security for Public Employees v. Montgomery Township, File No. 69-0230727.

COUNSEL

William R. Cooper, with him Emory W. Buck, Cooper & Greenleaf, for petitioner.

Daniel R. Shuckers, Assistant Counsel, with him Stephen B. Lipson, Assistant Chief Counsel, for respondent.

Judges Mencer, Blatt and Doyle, sitting as a panel of three. Opinion by Judge Doyle. This decision was reached prior to the resignation of Judge Mencer.

Author: Doyle

[ 68 Pa. Commw. Page 526]

Montgomery Township (Petitioner) appeals here from an order of a hearing examiner of the Bureau of Social Security for Public Employes (Bureau) of the Pennsylvania Department of Labor and Industry affirming a Bureau adjustment determination which assessed Petitioner for unremitted social security contributions in the amount of $1,244.96. We affirm.

[ 68 Pa. Commw. Page 527]

The facts in this case are not in dispute. On July 5, 1968, Petitioner entered into an agreement with the Secretary of the Department of Labor and Industry (Secretary), acting in his capacity as a "State Agency" pursuant to Section 3 of the Act of January 5, 1952 (Act), P.L. (1951) 1833, 65 P.S. § 203, for the extension of certain federal social security benefits to Petitioner's employees. In return for this extension of benefits, Petitioner agreed to remit to the Bureau a sum of money equal to the social security obligations which would otherwise be imposed by Sections 208(b) and 208(c) of the Internal Revenue Code of 1954, 26 U.S.C. § 3101 and § 3111, for each of its "employe[s]." Section I(h) of the agreement, in turn, defined the term "employe" as "an employe as defined in Section 210(j) of the Social Security Act and shall include an officer of this Political Subdivision."

Thereafter, at a date which is not disclosed in the record before us, the Bureau reviewed Petitioner's records and discovered that the Township had failed to remit any social security contributions for sums of money it had paid to Elmer Hagan, Jr., the fire marshall and to Vernon Sinn, the occupation tax collector in the years of 1975 through 1977. Since the Bureau considered these payments to be "wages" within the intendment of Section I(g) of Petitioner's July 5, 1968 agreement, and since it considered both of the individuals involved to be "employe[s]" within the intendment of Section I(h) of the agreement, the Bureau subsequently entered an adjustment determination against Petitioner for the unremitted social security contributions it calculated Petitioner should have paid to the Bureau. Petitioner subsequently refused to pay this assessment, however, and appealed the Bureau's determination to a Bureau hearing examiner. At a hearing conducted on September 26,

[ 68 Pa. Commw. Page 5281980]

, Petitioner alleged that both its fire marshall and occupation tax collector were "independent contractors" as opposed to "employees," and that they were therefore not covered by the terms of the July 5, 1968 agreement. After reviewing the evidence submitted by Petitioner, however, the hearing examiner concluded (1) that the remuneration Petitioner's fire marshall and occupation tax collector received from Petitioner from 1975 through 1977 constituted "wages" within the intendment of Section I(g) of Claimant's July 5, 1968, agreement, (2) that Claimant's fire marshall and occupation tax collector were township "officials," and therefore "employe[s]" within the intendment of Section I(h) of the July 5, 1968 agreement, and (3) that Petitioner was accordingly liable to the Bureau for unremitted social security contributions for these individuals for the years 1975 through 1977. The Bureau's adjustment determination was therefore affirmed, and the present appeal followed.

Our review of Bureau adjudications is governed by the provisions of Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, which limits our review to determining whether the adjudication below was supported by substantial evidence, whether an error of law was committed, or whether the petitioner's constitutional rights were violated.

Before this Court, Petitioner initially alleges that it was denied procedural due process in the proceedings below since the attorney the Secretary appointed to act as hearing examiner came from the same office in the Department of Labor and Industry as the ...


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