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VAUGHN A. HOEY v. COMMONWEALTH PENNSYLVANIA (10/29/85)

decided: October 29, 1985.

VAUGHN A. HOEY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, BUREAU OF EMPLOYMENT SECURITY, RESPONDENT



Appeal from the Order of the Office of Employment Security in the case of In The Matter of Vaughn A. Hoey, Account No. 60-NC, dated September 10, 1984.

COUNSEL

Graham C. Showalter, for petitioner.

Edward E. Hosey, Assistant Chief Counsel, with him, Herbert W. Hoffman, Deputy Chief Counsel, for respondent.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 92 Pa. Commw. Page 464]

Vaughn A. Hoey petitions for review of an order of the Department of Labor and Industry, Office of Employment Security (OES), which denied his petition for reassessment of unemployment compensation tax due from him plus penalties and interest. The OES had previously assessed him as owing unemployment compensation taxes for the third and fourth quarters of 1982 and for the first quarter of 1983 as well as interest. We affirm.

The following facts are pertinent. Hoey's sister, Karen Troutman, was totally and permanently disabled as a result of a work-related accident which occurred on January 15, 1981 and required constant monitoring and care. By court order dated March 30, 1981, Karen was adjudicated an incompetent and Hoey was appointed guardian of her person. Beginning in mid-1982, he hired a number of nurse's aides to look after Karen. Their duties included supervision of Karen, attending to her personal needs, preparing food and doing laundry. These aides were paid on an hourly basis at the rate of $3.60 per hour and Hoey was reimbursed by Karen's insurance carrier for the cost of these services. The hourly wage rate was established by an agreement between Hoey and the carrier. Approximately a month after these aides began working for him, Hoey submitted proposed employment contracts to each of them. These contracts designated the aides as "independent contractors" and were drawn up by Hoey's attorney. All of the aides but one executed the employment contracts. At no time did Hoey withhold state or federal income taxes from the aides' wages nor did he pay social security nor unemployment compensation taxes with respect to those wages. For tax purposes, he

[ 92 Pa. Commw. Page 465]

    issued each of the aides a form 1099-NEC (Non-Employee Compensation) rather than a form W-2, to evidence the amounts each received during the years in question.

On January 5, 1984, the OES, as noted, assessed Hoey the sum of $1,195.34 for unemployment compensation taxes due and unpaid for the third and fourth quarters of 1982 and the first quarter of 1983. The OES also assessed interest on the delinquent unemployment taxes in the amount of $143.67. Hoey filed a timely petition for reassessment with the OES and hearings on his petition were held on April 30, 1984 and July 17, 1984. Following those hearings, the examiner issued a decision which recommended that the petition for reassessment be denied. On September 10, 1984, the OES approved the examiner's decision and denied the petition.

In this appeal, Hoey raises three contentions: (1) that the OES failed to name the proper party in interest in its Notice of Assessment; (2) that he did not receive proper notification of the July 17, 1984 hearing; and (3) that the aides hired by him were independent contractors whose services do not constitute "employment" for which he may be assessed unemployment compensation taxes. We shall address these issues seriatim. Of course, our scope of review is limited to determining whether necessary findings are supported by substantial evidence, an error of law committed, or any constitutional rights of the petitioner violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704; Barnes v. Department of Justice, 70 Pa. Commonwealth Ct. 47, 452 A.2d 593 (1982).

We shall first address Hoey's contention that he is not the proper party in interest. He bases this contention upon the ...


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