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RICHARD ALSTROM v. COMMONWEALTH PENNSYLVANIA (09/28/84)

decided: September 28, 1984.

RICHARD ALSTROM, PETITIONER
v.
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 Richard Alstrom, No. B-217870.

COUNSEL

H. David Spirt, for petitioner.

Charles Hasson, Chief Counsel, for respondent.

Peter Kahana, with him, David Berger, Elizabeth Melton and R. L. Sorenson, Briggs and Morgan, P.A., for respondent/intervenor, I.C. Systems.

Judges Rogers, Craig and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 85 Pa. Commw. Page 334]

This is an appeal from an order of the Unemployment Compensation Board of Review (Board) denying

[ 85 Pa. Commw. Page 335]

    unemployment compensation benefits to Richard Alstrom (Claimant) on the ground that he had not been an "employe" within the intendment of Section 4(i) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 753(i), and hence was not qualified to receive benefits pursuant to the provisions of Section 401 of the Law, 43 P.S. § 801, which provides in pertinent part that "[c]ompensation shall be payable to any employe who is or becomes unemployed. . . ." (Emphasis added.) We will remand.

Section 4(i) of the Law states that the term "'Employe' means every individual . . . who is performing or . . . has performed services for an employer in an employment subject to this act." (Emphasis added.) Section 4(1)(2) of the Law, 43 P.S. § 753(1)(2)(B), in turn, provides in pertinent part that

[s]ervices 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 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. (Emphasis added.)

[ 85 Pa. Commw. Page 336]

In determining whether a commission salesperson is free from control or direction or the right to be controlled or directed we have held that the key determinative factors are "(1) a definite assignment of territory; (2) a required number of interviews to be made within a prescribed time period; (3) mandatory attendance at sales meetings; and (4) regular filing of progress reports." Unemployment Compensation Page 336} Board of Review v. Kessler, 27 Pa. Commonwealth Ct. 1, 5, 365 A.2d 459, 461 (1976). In determining whether an individual is customarily engaged in an independently established trade or occupation we have held that the key question is whether the individual is "'capable of performing the particular activities in question for any who wish to avail themselves of such services; and . . . the nature of the activity [is] not such that the individual [is] compelled to look to only a ...


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