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WALTER A. SUROWSKI v. COMMONWEALTH PENNSYLVANIA (11/23/83)

decided: November 23, 1983.

WALTER A. SUROWSKI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PUBLIC SCHOOL EMPLOYES' RETIREMENT SYSTEM, RESPONDENT



Appeal from the Order of the Commonwealth of Pennsylvania, Public School Employes' Retirement System in case of In the Matter of: Walter Surowski, S.S. No. 206-03-9391.

COUNSEL

Robert J. Milie, for petitioner.

Marsha V. Mills, Assistant Chief Counsel, for respondent.

Judges Williams, Jr., Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Concurring Opinion by Judge Barbieri.

Author: Doyle

[ 78 Pa. Commw. Page 491]

This is an appeal by the tax collector of the New Kensington-Arnold School District (Petitioner) from a decision of the Pennsylvania Public School Employes' Retirement System Board (Board) which declared him ineligible to participate in the retirement system.*fn1

The sole issue raised in this appeal is whether the Board erred in deciding that Petitioner was an independent contractor rather than an employee of the school district.*fn2 In determining whether a relationship

[ 78 Pa. Commw. Page 492]

    is one of employee-employer or independent contractor, certain factors will be considered which, while not controlling, serve as general guidance to the Court. These factors include: the control of the manner that work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; the skill required for performance; whether one employed is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or by the job; whether the work is part of the regular business of the employer, and the right to terminate the employment at any time. Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 243 A.2d 389 (1968); J. Miller Co. v. Mixter, 2 Pa. Commonwealth Ct. 229, 277 A.2d 867 (1971).

The facts established by the Board indicate that since 1954 Petitioner has served both as the elected tax collector for the City of New Kensington and as the appointed tax collector for the New Kensington-Arnold School District, receiving a separate annual salary for each position which is paid directly to him by each employer. Petitioner performs both City and school functions at the New Kensington Municipal Building, under the direction and control of the City, which sets the hours of his employment. The school district reimburses the City for its proportionate share of the costs incurred by the City in providing Petitioner with supplies and a clerical staff. Petitioner's benefits, including social security coverage, vacation, sick leave and insurance are provided jointly

[ 78 Pa. Commw. Page 493]

    by the City and school district by agreement between the two.

In reaching its decision, the Board acknowledged that the school district's payment of annual salary, contribution to employee benefits, and provision of work supplies were all indicative of an employee-employer relationship. The Board concluded, however, that Petitioner was an independent contractor on the basis of his exclusive control over the manner of his performance. While an employee's control over the manner of his performance is highly significant in determining an independent contractor status, ...


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